Not surprisingly, in 2022, the Italian Government(s)[1] extensively dealt with several international humanitarian law (IHL) implications of the Russia-Ukraine war: firstly, the systematic violations of the rules on targeting that protect civilians and civilian objects against the effects of hostilities; secondly, the forcible transfer of civilians from occupied territories under the law of belligerent occupation; lastly, the prospects for accountability for serious violations of IHL. These aspects are explored in the following analysis.
As for the rules on targeting, Italy has repeatedly condemned Russian military attacks against civilians and civilian objects. On the occasion of the Eleventh Emergency Special Session of the United Nations (UN) General Assembly, Ambassador Maurizio Massari, Permanent Representative of Italy to the UN, stated that “Italy strongly condemns the recent, brutal and indiscriminate Russian attacks against many cities across Ukraine, deliberately targeting civilians”.[2] Mr. Massari delivered a statement along the very same lines at the UN Security Council meeting in Arria-formula on “Ensuring accountability for atrocities committed in Ukraine”,[3] held on 27 April 2022. He affirmed that Italy is
deeply concerned by the recent report of the OSCE mission of experts, which has observed clear patterns of violation of international humanitarian law in the way hostilities have been conducted by the Russian army, heavily affecting the civilian population and infrastructure and in disregard of the principles of distinction, proportionality and precaution. Italy strongly condemns any military action targeting the civilian population in Ukraine.[4]
Similar statements were reiterated before the Chamber of Deputies (658th Meeting, XVIII Legislature). On 16 March 2022, the Italian Minister of Foreign Affairs and International Cooperation, Mr. Di Maio, argued that
The Russian offensive continues unabated and without any respect for the rules of international humanitarian law that protect civilians, starting with children, women, people with disabilities, the elderly, the sick. Hospitals, kindergartens, schools, and other civilian infrastructure are the target of the onslaught, which is clearly aimed at bringing down the resisting towns.
On 25 May 2022, Italy participated in the UN Security Council’s Annual Open Debate on the Protection of Civilians in Armed Conflicts. On that occasion, Mr. Massari underlined that “it is crucial to find ways to guarantee the full respect of international humanitarian law”.[5] More precisely, he said:
Italy supports a more proactive role of the UN in fostering international humanitarian obligations and in monitoring their implementation. The addition of a new ad hoc protocol to the 1949 Geneva Conventions might provide a normative framework, specific for such UN coordination mechanism focused on humanitarian corridors and humanitarian access. It would also spur a reinforced international commitment toward the protection of civilians.[6]
Interestingly, Italy is the only State that, on that occasion, directly referred to a new additional protocol to better protect civilians during armed conflicts. Other States expressed a different view, namely that the existing international legal framework protecting civilians is already comprehensive and that the real challenge is thus to improve its implementation.[7]
Concerns related to the protection of civilians have been raised also in relation to the use of cluster bombs by the Russian army in Ukrainian cities. In this regard, in the abovementioned speech of 16 March before the Chamber of Deputies, Mr. Di Maio stated that “[t]he UN has also received credible reports on the use of cluster munitions by Russian forces, including in populated areas. We strongly condemn the use of these odious, internationally banned weapons: they also indiscriminately target the civilian population”.[8]Moreover, Italy expressed support for the development of a Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences arising from the use of Explosive Weapons in Populated Areas (EWIPA). Consultations for its adoption had started three years before, in 2019, in Geneva, to address the humanitarian concerns raised by the increasing urbanization of armed conflicts, and to develop operational strategies to minimize civilian harm. On 6 April 2022, the Commission on Foreign and European Affairs (III) of the Chamber of Deputies unanimously adopted a motion (Final Resolution No. 7-00813) committing the Italian Government
to continue to express, through its diplomatic delegations and in every appropriate multilateral forum, severe and unequivocal condemnation of the use of cluster bombs and anti-personnel mines in Ukraine and in any conflict in which they are used by any of the actors involved;
to take steps, in the international arena, to ensure better protection for civilian populations affected by urban warfare, by continuing to participate in and actively support the current diplomatic track that will lead to the adoption of an International Political Declaration aimed at strengthening the protection of civilians from the humanitarian consequences of the use of explosive weapons in populated areas.
At the Open Debate of 25 May 2022, Mr. Massari reiterated Italy’s support for the adoption of the Declaration and stated before the UN Security Council that “[Italy is] particularly concerned about the use of explosive weapons in densely populated areas. [Italy] therefore support[s] the ongoing negotiations in Geneva aimed to introducing a political declaration to ban their use”.[9] Ultimately, the Declaration was finalized on 17 June 2022 in Geneva and, on 18 November, it was officially endorsed at the EWIPA Dublin Conference by more than 80 countries, including Italy.[10] The Declaration clarifies that there is no general ban on the use of explosive weapons, but their use must comply with IHL.[11] The signatories thus commit themselves, inter alia, to improving national policies and practices and to strengthening international cooperation in order to avoid civilian harm.
The war in Ukraine also raised issues related to the law of belligerent occupation. In this regard, there have been credible allegations[12] of forced transfers of Ukrainian civilians to Russian occupied territory, or to the Russian Federation itself.[13] Moreover, the UN Human Rights Office of the High Commissioner ascertained that Russian armed forces subject Ukrainian civilians to the so-called “filtration”, which is a system of security checks Russian military authorities deploy to register, interrogate, and, in some cases, detain individuals residing in, or moving through, territories controlled by the Russian Federation.[14] Although IHL does not prevent the Occupying Power from establishing check points, multiple elements indicate that the way Russian authorities undertake these activities violates IHL and raises human rights concerns.[15] On 7 September 2022, Mr. Massari explained Italy’s position on this point. During the Security Council briefing on forcible transfer of Ukrainians to Russia and filtration systems, he stated:
the filtration system of Ukrainian civilians we have heard about today is a violation of the jus in bello as profound as we have not witnessed in Europe since World War Two. It was indeed to avoid those horrors, that the International Community gathered in Geneva in 1949, adopting the four Conventions we all know: it is thus crucial to reiterate once again the prohibition of forcible transfers of civilians from the occupied territory to the occupying power’s territory, regardless of the motive.[16]
Mr. Massari continued as follows:
Firstly, we call on Russia to grant unfettered access for both UN bodies and international NGOs, such as the ICRC, to freely and safely visit the temporary placement centers with direct and complete access to these civilians, in line with the Geneva conventions. Secondly, we call on Russia to ensure the immediate return of all the forcibly transferred Ukrainian citizens, particularly women and children, to their territories of origin and their full freedom of movement towards third Countries.[17]
Italy took a clear position also in relation to Russia’s unilateral decision to annex[18] the Donetsk, Kherson, Luhansk and Zaporizhzhia oblasts. In this regard, on 12 October 2022, Mr. Massari delivered a statement[19] during the Eleventh Emergency Special Session of the General Assembly, summarizing Italy’s position as follows: “[w]e reject and unequivocally condemn the illegal attempted annexation by Russia of the Ukrainian provinces of Donetsk, Kherson, Luhansk and Zaporizhzhia. Such unilateral annexation is void and cannot determine any legal effect whatsoever”.[20]
With regard to the accountability issues raised by the IHL violations committed during the Russia-Ukraine conflict, on 5 May 2022, Mr. Massari stated before the UN Security Council:
Italy welcomes all measures to ensure full accountability for human rights violations as well as violations of international humanitarian law occurring in Ukraine, and fully supports the Commission of Inquiry established by the Human Rights Council, and the investigation launched by national authorities and the ICC on war crimes. This is why, Italy, together with more than 40 States parties, has indeed referred the situation of Ukraine to the Prosecutor of the ICC.[21]
On 7 September 2022, a statement in the same vein was made by Mr. Massari before the UN Security Council at the already mentioned briefing on forcible transfer of Ukrainians to Russia. On that occasion, he claimed that
Italy highlights the urge to guarantee accountability for the perpetrators of such severe breaches of International Humanitarian Law, reaffirms its full support for the work of independent international and domestic fora investigating to avoid any form of impunity, and support the further strengthening of the existing mechanisms of compliance, particularly the International Criminal Court.[22]
The decision to refer the situation to the ICC is coherent with Italy’s traditional support to the work of the Court. Moreover, on 27 April 2022, Mr. Massari emphasized before the UN Security Council that “aggression is in itself an international crime entailing the individual responsibility of those orchestrating the military attack against a sovereign country” and stressed that it “is at the root of all other crimes and it must not go unpunished”.[23] In this regard, on 22 June 2022, before the Senate of the Republic (444th Meeting, XVIII Legislature), the Deputy Minister of Justice, Mr. Francesco Paolo Sisto, noted that the Rome Statute already includes rape and any other forms of sexual violence within the list of acts that might constitute war crimes or crimes against humanity. He further argued that “Italy is committed at the international level to maintain a high level of attention on the issue and to foster a progressive development of international law, which may also lead to the recognition of rape as an act of a genocidal nature”. Similarly, on 22 June 2022, the Senate of the Republic adopted a motion (No. 1-00489) committing the Italian Government to “continu[ing] its international commitment to the full implementation of the ‘Women, Peace and Security’ agenda and to work[ing] to ensure that rape can be recognized as an act of a genocidal nature”.[24]
Turning to investigations of international crimes in Ukraine, on 19 May 2022, the then President of the Council of Ministers, Mr. Mario Draghi, expressed, both before the Chamber of Deputies (697th Meeting, XVIII Legislature) and the Senate of the Republic (435th Meeting, XVIII Legislature), Italy’s “support to the Ukrainian Government to investigate possible war crimes”. This statement shows Italy’s support for unilateral investigations conducted by Ukrainian authorities, which started shortly after the outbreak of the conflict and culminated in the first war crimes trial of a Russian soldier in May 2022.[25]
Finally, Italy has also been supportive of fact-finding mechanisms established to investigate international law violations. Specifically, on 27 April 2022, Mr. Massari argued before the UN Security Council that
Italy also supports the collection of evidence by both the OSCE Moscow Mechanism and the Independent Commission of Inquiry established by Human Rights Council, as well as the work of the UN Human Rights Monitoring Mission in Ukraine, which is closely monitoring the impact of Russia’s aggression on human rights across Ukraine, including by documenting and verifying the number of civilian casualties. Their findings are instrumental to the preparation of criminal prosecutions against those responsible for serious violations of human rights and international humanitarian law.[26]
On 2 June 2022, before the UN Security Council, after recognizing that fact-finding mechanisms can positively contribute to criminal investigations, the representative of Italy emphasized that “[t]hese mechanisms are not a substitute for criminal justice, but they complement and support investigative activities carried out by national and international prosecutors”.[27] Moreover, on a different occasion, Mr. Massari explained that “when investigations and prosecutions by national or international courts are impossible or ineffective, the General Assembly should consider creating international fact-finding mechanisms in order to conduct gender-sensitive investigations and ensure the collection and preservation of evidence”.[28]
On the whole, the elements of practice collected in 2022 show that the Italian Government has fully promoted accountability measures, on both a judicial and a non-judicial level, and has played a proactive role towards the development of the international legal framework applicable in armed conflicts. Italy has been assertive in denouncing IHL violations perpetrated by the Russian Federation and has resorted to a technical vocabulary, directly invoking the relevant legal notions. However, no reference was made to possible infringements committed on the Ukrainian side.
Giulia Cagol
A quotable version of this post was published in the Italian Yearbook of International Law: Cagol, “Violations of International Humanitarian Law and Issues of Accountability in the Russia-Ukraine Conflict”, IYIL XXXII (2022), 2023, pp. 533-539; available here.
[1] The right-winged coalition, led by the political party Fratelli d’Italia, won the Italian elections in September 2022, and a new Government was formed soon thereafter, in October 2022. The handover between the outgoing Premier, Mr. Mario Draghi, and the newly appointed one, Ms. Giorgia Meloni, entailed a political shift in many respects. Nevertheless, the Italian parliamentary and diplomatic practice shows that Italy’s position toward the IHL implications of the Russia-Ukraine conflict did not change significantly.
[2] The statement is available here.
[3] On the same occasion, Ambassador Massari declared that “[t]he unjustified military aggression of Russia against Ukraine is shaking the fundamental pillars of the rule-based international order: the prohibition to use force against the territorial integrity and political independence of a sovereign country; the obligation to settle disputes peacefully; the prohibition of targeting the civilian population and civilian infrastructures for military purposes”.
[4] The statement in available here.
[5] The statement is available here.
[6] Ibid.
[7] For instance, Brazil argued that “international humanitarian law already provides a solid framework to protect civilians, as provided for by the 1949 Geneva Conventions and their Protocols Additional. It is therefore clear that the problem is not the absence of norms, but the lack of implementation and respect for them” (UN Security Council, 9042nd Meeting, 25 May 2022, meeting record S/PV.9042). Similarly, Spain noted that “[w]e have a mature legal framework for the protection of rights, as well as a shared protection agenda. The real challenge is in the implementation” (ibid.).
[8] It is worth mentioning that neither Russia nor Ukraine have signed the Oslo Convention on Cluster Munitions. However, IHL prohibits the use of weapons that are by their nature indiscriminate (see Sassoli, International Humanitarian Law: Rules, Controversies and Solutions to Problems Arising in Warfare, Cheltenham, 2019, p. 380 ff.) and the International Committee of the Red Cross (ICRC) has included this provision in its study on customary IHL (Rule 71).
[9] See supra note 5.
[10] The official text of the Declaration is available here.
[11] Ibid.
[12] On 17 March 2023, the Pre-Trial Chamber II of the International Criminal Court issued warrants of arrest for Mr. Vladimir Putin, President of the Russian Federation, and Ms. Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation. According to the Court, there are reasonable grounds to believe that these two individuals bear criminal responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from the occupied territories of Ukraine to the Russian Federation. See International Criminal Court, “Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova”, 17 March 2023.
[13] See the statement of the Assistant Secretary-General for Human Rights, Ms. Ilze Brands Kehris, delivered at the UN Security Council meeting of 7 September 2022 on “Maintenance of peace and security of Ukraine” (9126th Meeting, S/PV.9126).
[14] Yale School of Public Health – Humanitarian Research Lab, “System of Filtration: Mapping Russia’s Detention Operations in Donetsk Oblast”, Report, 25 August 2022.
[15] Ibid.
[16] The statement is available here.
[17] Ibid. These conducts amount to violations of several IHL provisions, namely the right of detained civilians to be visited by the ICRC and by delegates of the Protecting Powers (as enshrined in Arts. 76 and 143 of the IV Geneva Convention) and the prohibition on deportations and forcible transfers of civilians (as enshrined in Art. 49 of the IV Geneva Convention).
[18] As argued by Sassoli (cit. supra note 8, p. 324), annexation “necessarily leads to violations of IHL as it implies by definition that a State applies its own legislation to the occupied territory, which is prohibited by IHL”.
[19] The Italian statement is available here.
[20] On the obligation of non-recognition of the separatist republics of Luhansk and Donetsk, see the contribution by Alì in this review (IYIL XXXII, 2023).
[21] The Italian statement is available here. On 1 March 2022, the Republic of Lithuania made the first State Party referral of the situation in Ukraine to the Court. The day after, a group of 38 States Parties submitted a joint referral to the Rome Statute, namely: Albania, Australia, Austria, Belgium, Bulgaria, Canada, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Luxembourg, Malta, New Zealand, Norway, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom. On 11 March 2022, the Office of the Prosecutor announced that North Macedonia and Japan also referred the situation in Ukraine to the Court. Successively, Montenegro and Chile associated themselves with the above-mentioned joint referral made by the group of 38 States Parties.
[22] See supra note 16.
[23] See supra note 4. It is worth noting that, in 2021, Italy ratified the Kampala amendment to the Rome Statute, extending the jurisdiction of the ICC over the crime of aggression.
[24] As for the adaptation of Italian law to the Statute of Rome, on 23 March 2022, before the Chamber of Deputies (663rd Meeting, XVIII Legislature), the Minister of Justice, Ms. Marta Cartabia, recalled that she had signed a decree to set up a commission for the drafting of a code of international crimes and further observed that “[w]ith the elaboration of these substantive rules, we take a further important step in adapting domestic substantive criminal law to the field of international crimes as well”.
[25] “Ukraine begins first war crimes trial of Russian soldier”, BBC News.
[26] See supra note 4.
[27] Statement delivered at the UN Security Council open debate on “Strengthening Accountability and Justice for Serious Violations of International Law”, 2 June 2022.
[28] Statement delivered at the UN Security Council humanitarian briefing on “Ukraine – Sexual Violence and Trafficking of Women and Children”, 6 June 2022. Italy’s position echoes the ongoing academic debate on the so-called “accountability turn” of fact-finding missions, i.e., the progressive introduction of international justice requirements in their mandates. This emerging trend raises several concerns, especially as regards the rights of the accused. Moreover, the legality itself of the accountability turn might be questioned, arguing that fact-finding missions are acting ultra vires and interfering in the internal affairs of sovereign States. For a review of the debate, see Stahn and Jacobs, “The Interaction between Human Rights Fact-Finding and International Criminal Proceedings: Toward a (New) Typology”, in Alston and Knuckey (eds.), The Transformation of Human Rights Fact-Finding, Oxford, 2016, p. 255 ff.; Van Den Herik and Harwood, “Commissions of Inquiry and the Charm of International Criminal Law: Between Transactional and Authoritative Approaches”, ibid., p. 233 ff.
Italy's Diplomatic and Parliamentary Practice on International Law 