Will Rules of War Survive Russia’s Aggression in Ukraine?
Since late February, the world has witnessed the day-to-day horrors of Russia’s armed aggression in Ukraine. Russia’s indiscriminate bombardment of Ukrainian cities, towns and villages has left massive destruction in its wake. Apartment buildings, hospitals and schools have been destroyed, and there are gruesome scenes of bodies of civilians in the streets, some bound and shot in the head execution-style. Many argue that Russia and its leader, Vladimir Putin, have and are committing “war crimes,” including genocide, suggesting that international law may have been violated.
A Retired Army Lawyer’s Perspective
The rules for war have interested me since childhood. My dad served in combat, fighting Nazi Germany. Airmen were told to surrender to German troops, who would respect the Geneva Convention of 1929 regarding prisoners of war, whereas German civilians would kill you. The notion of honor or morality when involved in warfare intrigued me, as it has to this day. Along the way, I spent a good deal of time during my own 29 years of active and reserve military service instructing soldiers and military leaders in the “law of armed conflict” (law of war). Convincing the young soldier, the West Point cadet, and even seasoned soldiers and officers that war has legal rules was often a challenge. After all, isn’t it the military’s goal to kill or maim as many of the enemy as possible?
Naïve me assumed that most war crimes in the 21st century result from unthoughtful troops, rather than government. After all, my JAG colleagues and I always instructed American troops to abide by the Geneva Conventions and other international law. It was, to me, beyond comprehension0F that the leader of a nation that is a permanent member of the United Nations Security Council would start the first major war on European soil since World War II and become an archvillain in the process.
Legal and Illegal Ugliness, as “War Is Hell”
Before discussing what ugliness during war is unlawful, it is worth considering some ugliness that may be entirely lawful. In Mariupol’s besieged Azovstal steel facilities, women, children and Ukrainian fighters were surrounded and holed up underground. The Russian military might attack them all with an infantry brigade using machine guns, grenades and flame throwers, or use its air force to drop napalm using fighter jets, or perhaps even detonate a tactical nuclear bomb, vaporizing everyone and perhaps much of the nearby city as well. If destroying Mariupol with a nuke could win the war for Russia, its use would be “proportional” and thus lawful. Moreover, any town or city that houses the headquarters to the enemy’s military command, or contains significant enemy forces, is a lawful target.
On the other hand, much of the Russian military’s ugliness is clearly unlawful under various bodies of international law. The Russian military appears to have targeted the city of Mariupol’s civilian population, and civilian infrastructure of many cities, with Mariupol the most well-known example, leaving most of that city in ruin. Besides Mariupol, Russia has likewise destroyed many other Ukraine villages, towns and cities – the villages around Kharkiv, for example1F – bombing residential areas, hospitals and schools in the process. The torture and murder of noncombatants, both civilians and captured soldiers, and the rape of women and perhaps even children, are clearly war crimes.
War can bring out the worst emotions and an untempered dark side of our species.2F International law is designed to temper this – to prevent war, to facilitate the restoration of peace and to prevent the worst behaviors.
Vladimir Putin has shocked the world with his audacity, his hubris and his manifest disregard for international law. Yet his behavior is not surprising, as Homo sapiens have a long history of barbarism toward other humans.3F This is one reason international laws about warfare exist – to dissuade nations from using armed force to resolve disputes and to mitigate the horrors of war once begun. War, it has been famously said, is “politics by other means.”4F One central rationale for the law of war is that it helps facilitate the restoration of peace between nations.
Rules of law in war allow for some measure of humanity. This has become especially important as advances in technology during and after the American Civil War allowed warfare to be waged on an industrial scale. Combatants are served by restricting combat to “military necessity.” Contrary to some views, Homo sapiens are not innately inhumane.5F This is one reason rules for warfare have developed, with just a few examples being: the Code of Hammurabi, the Bible’s Deuteronomy, medieval rules of chivalry, the writings of Hugo Grotius, the U.S. Civil War’s Lieber Code, the Hague Conventions, the Kellogg-Briand Pact of 1928 (outlawing wars of aggression) and, most famously, the various Geneva Conventions. Whatever the theoretical underpinnings and underlying reasons, the world developed rules for warfare that exist today.
But what of a national leader who uses armed force against another country for personal power or national ambition? For ego or empire? With a willingness to disregard international law or norms? We can speculate about Vladimir Putin’s motivation. Yet what is clear is that the war in Ukraine has not gone as expected for Russia. Perhaps Putin’s goal was to try to reestablish the glory of the former Soviet Union or, before that, the Tsarist Russian Empire. Yet empires do not often collapse without bloodshed and cataclysm.6F What we may be seeing in Ukraine is Putin’s empire collapsing, with the Russian military discarding its honor and integrity in its disregard for international law. However, many empires have been created through bloodshed. Putin could prevail, with Ukraine being the first domino to fall, creating a revised world order.
The world is facing a test, both as to international law and to the post-World War II world order. Russia is a nation that possesses enough nuclear bombs to destroy the world and has the second largest armed force on earth. Putin is saying to the world, with its actions in Ukraine, that “the rules of war may be for you, but not for Russia.” It is taking a “might makes right” approach that many thought the world rejected with the defeat of Adolf Hitler and Nazism. The international law of nations may have to be adjusted, depending upon Russia’s success in Ukraine.
There are two bodies of international law pertaining to Russia’s invasion of Ukraine. “Jus ad bellum” (justice before war) is the body of law justifying a state’s use of armed force in the first place. Russia asserts that its invasion is just and necessary. NATO and most nations in the United Nations disagree, viewing Russia as starting an unlawful war of aggression. “Jus in bello” (justice in war) are the rules applicable after an armed conflict has begun, and include the law of war (taught to soldiers to guide their conduct), crimes against humanity, and genocide.
Is a War of Aggression Unlawful Under Jus Cogens?
Whether the world permits Russia’s aggression may define international law. Not long ago, it would not have violated international law for the United States to attack Canada or Mexico, and irrespective of our close friendship with both countries, the illegality of wars of aggression is not as clearly established as one would expect.7F If Russia prevails even to a minor degree in Ukraine, this will undermine the view of many that wars of aggression should be prohibited by jus cogens – peremptory norms and fundamental overriding principles of international law from which no derogation is permitted.8F This is a strong reason to hope that Russia’s war of aggression is defeated.
Russia’s war of aggression has resulted in what appears to be the other violations of international law by Russia and its troops in Ukraine, as discussed next.
A State’s Responsibilities Ad Bellum and In Bello
Both nations and individuals can be held responsible for violating international law. A nation’s criminality will result in individual responsibility for those state leaders who are culpable. This is what the Nuremberg trials taught: that “[c]rimes against international law are committed by men, not abstract entities . . . [I]ndividuals have international duties which transcend the national obligations of obedience imposed by the individual state.”9F
A state’s responsibility is also collective. Even innocent citizens of an offending nation (e.g., the tennis stars who would compete at Wimbledon10F) can be properly punished to some degree, and morally so, simply for being citizens of a nation engaged in an unlawful war of aggression.
Individual responsibility also exists apart from the state. A soldier’s job is to lawfully kill other combatants. Yet “combatant immunity”12F when engaged in “discriminating” violence “proportionate” to the “military necessity”13F does not extend to criminality. Judge advocates are military lawyers who play a role in instructing service members and commanders about the rules of war that must be respected in combat. Soldiers guilty of war crimes,14F particularly “grave breaches” of the Geneva Conventions, such as murder, rape or torture, should be held accountable by their nation – by being court martialed and sent to military prison or death.15F The Ukrainian prosecutor general reports 15,000 ongoing investigations into Russian war crimes. Three Russian soldiers were convicted in May 2022 of war crimes by the Ukrainian government, with a 21-year-old Russian sergeant pleading guilty to murder and two other soldiers convicted of targeting civilians.16F
The focus of this article is state violations of international norms, as effectuated through the state’s political and military leadership. Directly or indirectly, it appears Vladimir Putin and his military high command are committing at least four categories of violations of international law constituting state action. They are:
(1) engaged in an illegal war of aggression,
(2) targeting civilians and employing the military to take actions amounting to war crimes,
(3) directing crimes against humanity, and
(4) undertaking actions constituting (the U.N.’s definition of) genocide.
War of Aggression
Putin (and Russia) has engaged in an illegal war of aggression. There was no plausible justification for the invasion, which thus violated jus ad bellum. The Nuremberg trials following World War II established, as set forth in Nuremberg Principle VI(a), that it is a crime under international law to commit “crimes against peace,” namely, “waging of a war of aggression.” Though arguably “victor’s justice,” the Nuremberg principles are the same as those adopted by the United Nations after its formation in 1945. As the successor to the Soviet Union after its 1992 collapse, Russia holds a seat at the United Nations. As such, Russia is obligated to uphold the U.N.’s charter and principles.
The relevant U.N. charter provisions are based on the Nuremberg Principle VI(a), which states that the purposes of the United Nations are:
[t]o maintain international peace and security . . .” (Article 1, ¶ 1);
to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace (Article 1, ¶ 2); and that
[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. (Article 2, ¶ 4).
The U.N. Charter provides that the Security Council “shall determine the existence of any . . . breach of the peace.” However, because the U.N. has allowed Russia to succeed17F the USSR as a permanent member of the Security Council with veto power over any vote, the U.N. will not be the body enforcing the U.N. Charter against Russia for Putin waging a war of aggression. However, this does not mean the world’s hands are tied, as we have seen action both by NATO and the private sector18F punishing Russia for its aggression. Professor Philippe Sands has presented a strong argument for the creation of an international tribunal to try Russia’s top leadership for Russia’s war of aggression.
Putin and his military commanders clearly appear to be intentionally targeting civilians and using Russia’s military to undertake actions amounting to war crimes. As an Army lawyer, I instructed soldiers about war crimes under the law of war. One of the requirements of the law of war is to provide instruction on the subject to military personnel. A full discussion of all possible war crimes taking place in Ukraine, including the various technical rules, such as discrimination, combatant immunity, proportionality, lawful weaponry, and very technical rules such as flags of truce, perfidy (unlawful) and ruse (lawful) could consume a volume. Yet the most palpable war crimes are the most obvious – the murder, torture and rape of noncombatants and the targeting of civilians and civilian infrastructure. When a military command embraces warfare criminality to, for example, break the will of a local population, both the perpetrating individuals and the state are culpable.
The most well-known law of war strictures are contained in the Geneva and Hague Conventions, which deal with the conduct of military personnel and weaponry. The law of war affords a measure of protection to noncombatants such as civilians and medical personnel, to certain protected places such as hospitals, museums and churches, and requires that the use of military force must be proportional to the military objective and must not be indiscriminate. Weaponry must not inflict “unnecessary suffering,” and thus glassine projectiles and hollow tip bullets are prohibited, where, in contrast, employing flame throwers or 50-caliber machine guns against infantrymen is perfectly legitimate. The law of war prohibits the use of poison gas and prohibits the destruction of civilian infrastructure and dams.
The U.S. military has excellent publications that provide a sound overview of the law of war from an American military perspective,19F and the most important source documents are also available on various official websites.20F
From news reports, some of the most egregious violations of the law of war in Ukraine include:
- Rape, torture and extrajudicial killing of non-combatants.21F
- Indiscriminate target of civilian population centers and civilian infrastructure, where no significant enemy military assets are present.
- The indiscriminate Russian placement of land mines in civilian areas. The placement appears intended to terrorize (by maiming and killing) civilians, and not for bona fide military objectives. In this regard, the Russians appear to be using a new and particularly indiscriminate type of mine that experts regard as an unlawful weapon.
These are actions which, if reported accurately in the press, violate the Hague and Geneva Conventions. They also violate customary international law,23F which is why it does not matter that, as to land mines, Russia is not a signatory to the Convention on Land Mines (nor is the U.S.).
Russia can lawfully, and brutally, kill Ukraine’s non-surrendering troops in Mariupol. Yet once those troops surrender, they are protected by the law of war. Ukraine’s President Volodymyr Zelensky ordered his Mariupol troops to surrender, which they did on May 17, 2022, and were taken away into Russian territory. There, they are entitled to be treated as prisoners of war under the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, regardless of whether the Russian Supreme Court declares the prisoners members of a “terrorist organization.”24F Abusing prisoners of war, including denying them a fair trial, is also a war crime.
Ukrainian soldiers have also been accused of violating the law of war, including murdering Russian prisoners. The Ukrainian government indicates that it will prosecute a Russian soldier in absentia for allegedly committing rape, raising obvious due process concerns.
One of the most important principles that must be taught to military personnel is the legal requirement that military personnel not follow an “unlawful order” – an order violating the laws of war. The Nuremburg trials eliminated the defense of “just following orders.” If a commander gives an order that violates the law of war, that commander should be held responsible.
Proving a law of war violation before a tribunal often can be difficult or impossible. It is unlikely that any Russian commanders in Moscow – or Putin – would be held responsible for his troops’ thefts, rapes, murders and other non-systemic criminality absent direct proof of complicity. However, liability may attach if evidence is found that Putin or a senior commander authorized the indiscriminate targeting of protected places (hospitals, churches, civilian infrastructure such as dams), the targeting of civilians and civilian housing, or the use of prohibited weapons (cluster bombs, poison gas, anti-personnel mines intended to kill civilians). There is increasing interest in holding Russian leaders responsible.25F
Crimes Against Humanity
Putin and his military commanders appear to be directing crimes against humanity. As explained by the U.N.’s Office on Genocide Prevention and the Responsibility to Protect:
“Crimes against humanity have not yet been codified in a dedicated treaty of international law, unlike genocide and war crimes, although there are efforts to do so. Despite this, the prohibition of crimes against humanity, similar to the prohibition of genocide, has been considered a peremptory norm of international law, from which no derogation is permitted and which is applicable to all States.”2
Crimes against humanity are certain acts that are purposefully committed as part of a widespread or systematic policy, directed against civilians, in times of war or peace. They differ from war crimes because they are not isolated acts committed by individual soldiers but are acts committed in furtherance of a state or organizational policy. Generally speaking, crimes against humanity refer to specific crimes committed in the context of a large-scale attack targeting civilians, regardless of their nationality.
Although the U.S. is not a party, the Rome Statute of the International Criminal Court (1998), which created the ICC, contains the most recent and expansive list of specific criminal acts that may constitute crimes against humanity. Its list of crimes include murder, torture, sexual violence, enslavement, persecution, enforced disappearance or other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
As the U.N. agency OGPRP cited above explains:
“the notion of crimes against humanity has evolved under international customary law and through the jurisdictions of international courts such as the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Many States have also criminalized crimes against humanity in their domestic law; others have yet to do so.”27F
As to Russia in Ukraine, to the extent that an individual (for example, Vladimir Putin or his commanders) can be shown to have perpetrated crimes against humanity using Russian or allied forces, individual criminal liability could be established in, for example, the ICC. A “Justice for Victims of War Crimes Act” has been proposed to give federal court jurisdiction over war crimes committed abroad (for example, in Ukraine).28F
Finally, Russia appears to be engaging in what is commonly understood to be the gravest offense to global norms – genocide. Specifically, it is targeting a particular group of people to be killed – at least if they do not depart the coastal and eastern portions of Ukraine that Putin wants for Russia. In this, Russia is violating Article Two of the United Nations Genocide Convention (effective Jan. 1951, with the Soviet Union a signatory), which provides in relevant part pertaining to Ukraine:
“any of the following acts committed with the intent to destroy, in whole or in part, a national . . . group, as such:
- Killing members of the group.
- Causing serious bodily or mental harm to members of the group.
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” (emphasis added).
The signatories to the convention (including Russia as successor to the USSR) also agreed to a general duty to “prevent and to punish” genocide.
Thus, Russia is arguably committing genocide by flattening Ukrainian cities and towns such as Mykolaiv or Bucha, or seeking to drive Ukrainian citizens out of the port city of Mariupol using a Stalingrad-type siege, or targeting civilians waiting to evacuate the area at the train station at Kramatorsk,29F forcibly moving children to Russia, or seeking generally to drive Ukrainians out of Ukraine (and especially its eastern “Donbas” region).
These acts may fit the definition of genocide, even if not of the magnitude of, say, the mass human extermination of 6 million people during the Holocaust under Hitler, or the perhaps 2 million people exterminated in the Cambodian genocide under the Khmer Rouge and Pol Pot, or the over 500,000 killed in the Rwandan Genocide, or the tens of millions who died under the Great Purge under Joseph Stalin and the Cultural Revolution under Mao Zedong. A report released on May 27, 2022, by international legal scholars and human rights experts concluded that Russia is responsible for inciting genocide in Ukraine, with the apparent intent of destroying the Ukrainian people.
Human beings and governments are not perfect. Realpolitik often governs international affairs. Perhaps the former Soviet Union should never have been allowed into the United Nations, as the ideals expressed in the U.N. Charter are the antithesis of Soviet communism. Yet the peace has been kept in Europe after the Second World War based upon aspirational values being respected as necessary for democratic and authoritarian countries to get along. This is realpolitik. I served in Germany during the Cold War and, until Russian invaded Ukraine on Feb. 24, 2022, I simply could not imagine the possibility of a third world war in Europe. Yet we are witnessing one today.32F
When we look at human history, peace seems the exception and violence the norm. Yet that might not be accurate – humans may be more peaceful than we tend to believe.33F And our interconnectedness today may facilitate a shared humanity, as we now live in a world where almost everyone is or can be connected. Cell phones and the internet have made many an atrocity instantly available and a mouse click or text away, even for someone living in Moscow. Russians may still believe in the justness of Vladimir Putin’s cause.34F Yet public opinion can change quickly in our modern world. Thus, it may indeed be useful to discuss the law of war as more than ivory tower notions to be disregarded at will by an autocrat, but instead view these as ideals that might prevent a third world war.
The law of nations may provide ideals for helping maintain the better angels of our nature. Ideals for the survival of liberal democracy. Ideals for saving humanity itself. The law of nations helps to preserve world order, peace and humanity. Ukraine is a test. The world can ask whether international rules of law have any meaning if an egregious breach of legal norms by a nation’s leader and his military goes unredressed. Individuals at all levels and the state must be held to account, or the law of the jungle will replace international law.
The community of nations must demand that international law governing war and peace be respected. It must stand up for liberal democracy and against Putin’s disinformational model for an autocratic world order.
Michael Diederich, Jr. is a solo practitioner in Rockland County who represents individuals in civil rights and employment law matters. He is a retired U.S. Army “JAG” lawyer and served on active duty tours in Germany, Iraq and Afghanistan. He is co-chair of NYSBA’s Committee on Civil Rights.
 Of course, I was not thinking about, for example, the Russian-Georgian War of 2008 and Russian’s intervention and war crimes in Syria (with Russian air strikes killing many civilians in 2016-17). Nor was I thinking of America’s invasion of Iraq or Afghanistan (I spent time in both) nor of indefinite detentions of presumably unlawful combatants at Guantanamo nor government-sanctioned torture at CIA “black sites.”
 See Finbarr O’Reilly, Around Kharkiv, Ukrainians Emerge to Find Lives in Ruin, N.Y. Times, May 18, 2022, https://www.nytimes.com/2022/05/18/world/europe/kharkiv-ukraine-russia-photos.html.
 See Michael Ghiglieri, The Dark Side of Man: Tracing the Origins of Male Violence (2000).
 And barbarism toward the natural environment too. See, e.g., Diederich, Law of War and Ecology: A Proposal for a Workable Approach to Protecting the Environment Through the Law of War, 136 Military L. Rev. 141 (Summer 1992), https://tjaglcspublic.army.mil/documents/27431/2247330/1992-Spring-Aassembled.pdf/f224e715-f1a5-4845-94d9-4fcd1262b135?version=1.1.
 See Carl von Clausewitz, On War, trans. Col. J.J. Graham. New and revised ed. with Introduction and Notes by Col. F.N. Maude, in three volumes (London: Kegan Paul, Trench, Trubner & C., 1918), https://oll.libertyfund.org/page/grotius-and-the-laws-of-war.
 See Rutger Bregman, Humankind: A Hopeful History (2020), https://www.littlebrown.com/titles/rutger-bregman/humankind/9780316418553/.
 See Dominic Lieven, Empires Eventually End Amid Blood and Dishonour, The Economist, April 16, 2022, https://www.economist.com/by-invitation/2022/04/16/dominic-lieven-says-empires-eventually-end-amid-blood-and-dishonour.
 I served in Iraq after we attacked that nation without the United Nations’ authorization. Books have been written about nations not practicing what they preach.
 See Jus Cogens – International Law – Oxford Bibliographies, https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0124.xml; see also Peremptory norm, Wikipedia, https://en.wikipedia.org/wiki/Peremptory_norm.
 See Stuart Ford, infra note 17, at 770, quoting Nuremberg Judgment and Sentences (“Crimes against international law are committed by men, not abstract entities… [I]ndividuals have international duties which transcend the national obligations of obedience imposed by the individual state.”).
 See Sally Jenkins, Wimbledon’s Ban on Russian Players Is Unfair, Personal – and Exactly Right, Wash. Post, April 21, 2022, https://www.washingtonpost.com/sports/2022/04/21/wimbledon-russia-medvedev.
 See Anna Stilzm Collective Responsibility and the State, 19 J. of Political Philosophy 190–208 (2011), https://scholar.princeton.edu/sites/default/files/Stilz_JPP_0.pdf.
 See 32 C.F.R. § 11.5, “Definitions (a) Combatant immunity. Under the law of armed conflict, only a lawful combatant enjoys ‘combatant immunity’ or ‘belligerent privilege’ for the lawful conduct.” See generally Laurie R. Blank, Combatant Privileges and Protections, Lieber Institute, West Point (Mar 4, 2022), https://lieber.westpoint.edu/combatant-privileges-and-protections.
 “Discrimination,” “proportionality” and “military necessity” are terms of art in the law of war.
 See, e.g., Uniform Code of Military Justice, 10 U.S.C. § 920 (Article 120) (rape), and the War Crimes Act of 1996, 18 U.S.C. § 2441.
 To America’s discredit, the United States breached this duty when President Trump pardoned American war criminals in 2019 and 2020 – condoning a “might makes right” mentality violating the spirit, and likely the letter, of international law. See, e.g., Stuart Ford, Has President Trump Committed a War Crime by Pardoning War Criminals?, Amer. U. Int’l L. Rev. 757 (2020), https://digitalcommons.wcl.american.edu/auilr/vol35/iss4/3; Geneva Convention (I), Art. I: Respect for the Convention (“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”); see also ICRC, ICRC Explainer: What Does International Law Say About Pardons for War Crimes? (May 24, 2019), https://www.icrc.org/en/document/icrc-explainer-what-does-international-law-say-about-pardons-war-crimes. OMIT: Pres. Trump certainly ignored the moral obligation with respect to legal expectations, https://ihl-databases.icrc.org/ihl/full/GCI-commentaryArt1.
 See Caitlin McFall, Russia-Ukraine war: 15k Probes Into Russian War Crimes, ‘Cost of Justice Is Small Potatoes’ Says ICC, Fox News, May 31, 2022, https://www.foxnews.com/world/russia-ukraine-war-15k-probes-russian-war-crimes-cost-of-justice-small-potatoes-icc.
 See Valerie Hopkins, A Russian Soldier Accused of Killing a Civilian Pleads Guilty in a Kyiv Court, N.Y. Times, May 18, 2022, https://www.nytimes.com/2022/05/18/world/europe/russian-soldier-war-crime-ukraine-law.html; Greg Norman, Ukraine War Crimes Trial: Russian Soldiers Learn Their Punishments, Fox News, May 31, 2022, https://www.foxnews.com/world/ukraine-war-crimes-russian-soldiers-sentenced.
 It has been argued that because the Soviet Union dissolved, that Russia should not have taken over the USSR’s U.N. seat or, alternatively, that it should be removed now based upon its recent conduct.
 See Lauren Hirsch, After 32 years, McDonald’s Plans To Sell Its Russia Business, N.Y. Times, May 16, 2022, https://www.nytimes.com/2022/05/16/business/mcdonalds-russia.html.
 See Philippe Sands, Putin’s Use of Military Force Is a Crime of Aggression, Financial Times (Feb. 28 2022), https://www.ft.com/content/cbbdd146-4e36-42fb-95e1-50128506652c; see also, Loveday Morris, An ‘Unprecedented’ Effort to Document War Crimes in Ukraine. But What Chance of Justice?, Washington Post (May 28, 2022), https://www.washingtonpost.com/world/2022/05/28/ukraine-war-crimes-investigations/.
 See, e.g., U.S. Dep’t of Def., DoD Law of War Manual § 1.11.2 (Dec. 2016) and U.S. Army Operational Law Handbook (2021), https://tjaglcs.army.mil/documents/35956/56931/2021+Operational+Law+Handbook.pdf/4e10836e-2399-eb81-768f-7de8f6e03dc5?t=1630386651949&download=true.
 See, e.g., Chris Jenks, The Efficacy of the U.S. Army’s Law of War Training Program, Oct 14, 2020, https://lieber.westpoint.edu/efficacy-u-s-armys-law-of-war-training-program/
 See Shashank Bengali and Katrin Bennhold, Russians Discussed Killings of Civilians in Radio Traffic Intercepted by Germany, Officials Say, N.Y. Times, April 7, 2022, https://www.nytimes.com/2022/04/07/world/europe/bucha-killings-russian-communications-intercepted.html.
 See John Ismay, New Russian Land Mine Poses Special Risk in Ukraine, N.Y. Times, April 6, 2022, https://www.nytimes.com/2022/04/06/us/politics/russia-ukraine-land-mines.html.
 Customary international law is not founded on a treaty, but rather on the development of international norms.
 See Shashank Bengali, As Russia Says Hundreds More Mariupol Fighters Surrender, Their Fate Is Unclear, N.Y. Times, May 18, 2022, https://www.nytimes.com/live/2022/05/18/world/russia-ukraine-war-news.
 See Geneva Convention relative to the Treatment of Prisoners of War, adopted 12 August 1949, https://www.ohchr.org/en/instruments-mechanisms/instruments/geneva-convention-relative-treatment-prisoners-war.
 See Andrew Jeong, Russian Soldier To Be Tried in Absentia in First Rape Trial Since Invasion, Wash. Post, May 31, 2022, https://www.washingtonpost.com/world/2022/05/31/russia-ukraine-war-news-live-updates/.
 See note 22, supra, see also Ukraine’s Prosecutor General Is Determined To Hold Russia Accountable for Atrocities, All Things Considered, WNYC Radio, April 26, 2022, http://www.wnyc.org/story/ukraines-prosecutor-general-is-determined-to-hold-russia-accountable-for-atrocities.
 See United Nations Office on Genocide Prevention and the Responsibility to Protect, Crimes Against Humanity, https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml.
 See Charlie Savage, Russian Atrocities Prompt a Bipartisan U.S. Push To Expand a 1996 War Crimes Law, N.Y. Times, May 16, 2022, https://www.nytimes.com/live/2022/05/16/world/russia-ukraine-war-news. See also the draft legislation amending 18 U.S.C. 2441, https://int.nyt.com/data/documenttools/draft-grassley-durbin-justice-for-victims-of-war-crimes-act/c906804f2cbc4e36/full.pdf.
 See Eric Schmitt, The Pentagon Says Russia Fired the Missiles That Hit Kramatorsk Station, Killing at Least 50 People, N.Y. Times, April 8, 2022, https://www.nytimes.com/live/2022/04/08/world/ukraine-russia-war-news#the-pentagon-says-russia-fired-the-missiles-that-hit-kramatorsk-station-killing-at-least-50-people.
 See Marc Santora, Ukraine Accuses Russia of Forcibly Deporting More Than 200,000 Children, NY Times, June 2, 2022, https://www.nytimes.com/live/2022/06/02/world/russia-ukraine-war-news – ukraine-accuses-russia-of-forcibly-deporting-more-than-200000-children.
 See Russia Takes Territory in Eastern Ukraine, Wash. Post, May 27, 2022, https://www.washingtonpost.com/world/2022/05/27/russia-ukraine-war-news-live-updates/.
 See Victoria Kim, A New Report Concludes That Russia Is Inciting Genocide in Ukraine, N.Y. Times, May 27, 2022, https://www.nytimes.com/live/2022/05/27/world/russia-ukraine-war – a-new-report-concludes-that-russia-is-inciting-genocide-in-ukraine; see also An Independent Legal Analysis of the Russian Federation’s Breaches of the Genocide Convention in Ukraine and the Duty to Prevent, https://newlinesinstitute.org/an-independent-legal-analysis-of-the-russian-federations-breaches-of-the-genocide-convention-in-ukraine-and-the-duty-to-prevent/.
 See Thomas L. Friedman, Ukraine Is the First Real World War, N.Y. Times, April 3, 2022, https://www.nytimes.com/2022/04/03/opinion/ukraine-russia-wired.html.
 See Bregman, note 6 supra.
 See Ross Douthat, Putin Is Losing in Ukraine. But He’s Winning in Russia, N.Y. Times, April 2, 2022, https://www.nytimes.com/2022/04/02/opinion/putin-ukraine-russia.html.