Ukraine Series: Understanding the Humanitarian Implications of Ukraine
April 26, 2022
Asli Bali and Lindsay Morgan
In the latest in the Talking Policy series on Ukraine, Asli Bali, a professor at the UCLA School of Law and expert in human rights law and comparative constitutional law, talks with host Lindsay Morgan about the humanitarian crisis unfolding in Ukraine and beyond, what obligations the international community has to protect civilians, and why ending the war should be the most important priority. A graduate of Williams College and University of Cambridge, Yale Law School and Princeton University, Bali previously worked for the United Nations Office of the High Commissioner for Human Rights and currently serves as co-chair of the advisory board for the Middle East Division of Human Rights Watch. This interview was recorded on April 18, 2022.
I want to start by asking you to describe what is the current humanitarian situation in Ukraine. The invasion began on February 24, a couple of months ago at this point. Where are we now? What do you know about what’s happening on the ground?
We’re more than 50 days into this conflict, which is both hard to believe, and feels almost as if it’s been longer because it’s been so all-consuming here in the United States, which is striking and maybe something we could come back to.
We have figures that are maybe a week and a half old now of the numbers of refugees who have left Ukraine for neighboring countries, which was about 4.3 million people. That may have reached four and a half million or more by now. Many of those have ended up in Poland, which has received the largest numbers, but [many have] also [fled to] Hungary, Moldova, Romania, Slovakia, and elsewhere in Europe.
The United Nations continually revises its estimates of what it’s expecting and preparing for. Whereas at one point the expectation was 4 million total refugees over a more extended period of time, now the expectation is as high as 7 million refugees as the war continues and up to another 7 million internally displaced persons [IDPs]. That number [IDPs] has already hit 6 million, which is to say 6 million people have been forced from their homes within Ukraine but are still elsewhere in Ukraine. Typically, people who have been displaced from the Eastern parts of the country move to the Western parts of the country.
We also have reason to think that there have likely been thousands of civilian casualties, although reliable numbers are very difficult to come by. In the Kyiv suburb, Bucha, we saw the Russians retreat and scenes of not only burnt-out buildings, but bodies strewn around the streets. There have been ongoing onslaughts in much larger places like Mariupol for weeks. The Ukrainian president has estimated tens of thousands dead in the Mariupol context. It may be that high or more. We have no way of knowing. Strikes on places like hospitals, train stations in Kharkiv and elsewhere, suggest that even in places that aren’t seeing that level of intensity of conflict, we may nonetheless be talking about very significant civilian casualties.
It’s worth noting that the humanitarian crisis triggered by Ukraine is actually much broader than the events in Ukraine.
The threat to global food security that has been generated by this conflict has created the risk of famine conditions that are affecting tens of millions of people that aren’t on camera.
Just a couple of examples: as of this morning, hunger conditions, which is to say near-famine conditions, for the population in Afghanistan have risen from 55 percent to 65 percent of the total population of that country, which is to say much more than 10 million people. Exacerbated acute food crises are now also present in other contexts, where there have been already hundreds of thousands of civilian casualties, like in Yemen and the conflicts in the horn of Africa.
Countries of the Global South and countries with smaller economies are far more vulnerable to the consequences of price shocks [to food staples]. And then fertilizer: it just so happens that Russia and Ukraine are also the source of fertilizer shortages that now [risk] generating real agricultural crises the world over. The World Food Program has said that the global food chain system has been fundamentally destabilized with the taking out of as much as 30 percent of the world’s wheat supply, 20 percent of the corn supply, and about 80 percent of sunflower oil supply. Each of these are basic food staples in countries like Egypt, Lebanon, Yemen, and elsewhere and involve such a high level of dependency that we can reliably expect famines in very densely populated parts of the world almost immediately.
One of the most troubling things about seeing these images of suffering that are saturating our news feed every day is the apparent inability of a country like the United States to stop it from happening. You are an expert in international obligations in humanitarian crises. What have countries like the United States agreed to do to protect civilians during war? What obligations do we have and how are these coming into play now in Ukraine or not?
We have a range of different obligations. To begin with, the United Nations system is structured around an executive organ, the UN Security Council, that is supposed to intervene in circumstances where there has been a threat to international peace and security, which is clearly the case here. More importantly, where there’s been a violation of the prohibition on the use of force, and especially use of force that is undertaken not in self-defense, but in aggression. And that’s what’s happened in Russia.
The challenge with the Security Council’s architecture is that it includes a veto power for five countries on the council, including the United States, of course, but also Russia.
What this means is that when a country like Russia violates these rules, it is impossible for the Security Council itself to act against Russia in order to demand that it withdraw or that it desist from its military intervention in Ukraine and to impose consequences, which is what typically happens in the cases of other countries where you have a war of aggression or violations of the rules on the use of force.
It is worth noting that the United States has benefited from this veto power, and it too engaged in a war that violated the prohibition on the use of force and was not in self-defense—in the case of Iraq—against overwhelming international opposition and, again, benefited from its position on the Security Council. So, the Security Council bakes in a certain kind of geopolitical impunity for very powerful states that violate international rules and use force in this manner once the war has begun.
There’s a second body of rules, international humanitarian law, that governs how force may be used in any conflict, regardless of who the aggressor is, or who’s acting in self-defense. All parties to the conflict are obliged to observe these rules. And they include, at the most basic level, the obligation to discriminate between military and civilian objects; the obligation to limit attacks to those that are militarily necessary for the pursuit of objectives; and the obligation to have all uses of force be proportionate to whatever is [a] valid [objective] within international law terms.
So deliberate targeting of hospitals or train stations is clearly impermissible under these rules. Now, it’s very typical in war that we nonetheless see these kinds of attacks occur. Sometimes they’re described as collateral to a legitimate strike on a legitimate military target. So, the argument would be that “the hospital was too close to an armed unit that we were legitimately targeting” and so forth. And across the world, we’ve seen conflict after conflict where you have mass civilian casualties and very little meaningful accountability, oftentimes using these kinds of allowances within the body of international humanitarian law.
Beyond the rules of war, there are also bodies that most states in the international system are subject to. One of them is the 1951 Refugee Convention, which has been triggered here and is the reason that many countries around Ukraine, including [ones] far away from Ukraine, such as the United States, are accepting Ukrainian refugees from the war.
And then there are also further obligations under international humanitarian law. Parties to the conflict and all other parties are to ensure and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need and to support that unimpeded access of humanitarian organizations like the UN and the International Committee of the Red Cross.
Does the Responsibility To Protect come in to play with this conflict?
The Responsibility to Protect Doctrine was promulgated as a proposal for circumstances where humanitarian interventions are permissible in the international system. It isn’t [set forth in] a treaty nor has it been broadly consented to as a standalone basis for intervening in a conflict. But it has been embraced in a variety of ways. The Responsibility to Protect doctrine says that if a government is unable or unwilling to protect the humanitarian welfare of its civilian population, then a secondary obligation resides in the international community to step in and offer protection to civilians in circumstances where massive atrocities are either being committed or are being threatened.
And there are a number of circumstances in which this could be invoked. The one time it was invoked to justify a military intervention was with the authorization of the Security Council in the case of Libya. In the Libyan context, the Security Council voted in favor of a military intervention to protect Libyan civilians from the possibility or threat of atrocity crimes by their government. Again, that depended on the Security Council being able to act. And that’s the one basis for lawful responsibility to protect. [In Ukraine, because the Security Council is blocked from acting by a Russian veto, this basis for attaining a Responsibility to Protect-based intervention is not available.]
You already mentioned the huge number of refugees that this crisis has created. There is a lot of conversation happening about the degree to which they are being welcomed in countries in Europe, in the United States, compared to refugees from other conflicts who have not necessarily been as welcome and embraced. What obligations do we have to accept refugees and to provide equal treatment across refugees?
The obligations to accept refugees again, are grounded in that refugee convention I cited earlier and oftentimes in countries like the United States, there’s also domestic law [governing obligations towards refugees]. But the reality is that refugees have to be able to arrive on the border and on the territory of a country in order to be able to claim refugee status and seek protection. And what’s happened globally is an increasing unwillingness to respect the terms of the humanitarian obligations to refugees and prevent them from coming on territory in order to avoid triggering legal obligations towards them. The double standards around this have been really stark in this case because Ukrainians of course, have been welcomed across borders broadly. The United States, for example, has now committed to admit a hundred thousand Ukrainians. Obviously, they wouldn’t be able to reach the United States without that kind of consent since Ukraine is thousands of miles away from the United States, but the U.S. is making that facility available to them.
By contrast, in the very same border regions that Ukrainians are now crossing, Syrians, Afghans, Iraqis, just this winter, only a month before this conflict erupted, were allowed to travel to that area by the government of Belarus, and then encouraged to cross the very same borders to try to seek refuge and asylum. Not only were they not allowed to do that, but they were oftentimes beaten and abused at the border. They were forced into the same forests that Ukrainians are now crossing, and died, froze to death, including women and children, with almost no humanitarian aid or empathy for their circumstances.
Even in the context of Ukraine itself, the double standards have been stark. Brown and black persons, people who by their skin tone are recognizably not deemed ethnically Ukrainian, but are nonetheless residents of Ukraine are fleeing the very same conflict, have been treated dramatically differently, whether we’re talking about stories about Nigerian and Indian students who were studying in Ukraine and were forced off trains and forced to the back of a queue, or not allowed into Poland, or other individuals born in Ukraine but bearing names that suggest a Muslim background. In each of these circumstances, it’s made clear that you need to be a white, blonde, blue-eyed Ukrainian to receive this kind of welcome. In Europe, entirely separate immigration regimes have been established enabling Ukrainians to be fast-tracked alongside the exact facilities where all others are left to languish in terrible conditions, in squalid camps.
The French, for example, ran a horrific camp in Calais, which is very close to that same area where they’ve opened up a beach hostel for Ukrainians to be greeted. And the U.S. program that accepts Ukrainian refugees has outstripped by significant numbers of Afghans who are being admitted, even though Afghans face humanitarian perils, not because of a distant conflict being triggered by another country, but rather because of the U.S. invasion of that country and the fact that many of the people trying to flee assisted the United States directly in its 20 years in the country. But we don’t feel this kind of special responsibility or acknowledgment of longstanding ties towards them that we’re experiencing with respect to the Ukrainians.
One argument in Europe has been that this is about neighborliness. “Ukrainians are our neighbors, and therefore we owe them this.” And yet our neighbors in Mexico and Central America have not been extended anything like this kind of welcome.
The head of the WHO [World Health Organization] who’s been much in the news over COVID for the last two years, Dr. Tedros Ghebreyesus, captured succinctly the views of the Global South, which is that the response to Ukraine’s refugee crisis is simply a global demonstration of the bias against Black lives.
In early March, the UN Human Rights Council voted to establish a commission of inquiry on Ukraine whose mandate will include investigating alleged rights violations and abuses and related crimes and making recommendations on accountability. What power will this commission have?
Before we turn to what the Council did in March, it might be worth noting that the UN General Assembly voted this month to suspend Russia from the UN Human Rights Council, which is the body that created that commission of inquiry. In fact, the General Assembly, which has 193 members and is one state, one vote, held another vote even before this, condemning the war and calling on Russia to immediately withdraw its forces. That resolution was almost identical to the one that had been introduced in the Security Council by the U.S. and vetoed [by Russia]. In the General Assembly, there is no veto, so, it passed with the support of 141 countries, with only five opposed, including Russia itself, and 35 abstentions.
These abstentions were important. China abstained, India abstained. But nonetheless, 141 countries—the vast majority of states in the international system—wholeheartedly condemned the war and called on Russia to immediately withdraw its forces. The General Assembly also voted on the suspension of Russia from the Human Rights Council. There was substantially less support for this move. So, on the one hand, a large number of countries are willing to acknowledge that what Russia is doing is aggression, condemn the war itself, and call for an immediate withdrawal of forces. But the idea of suspending Russia from bodies where it can continue to be engaged with on its behavior, has garnered less support.
Does that surprise you?
It doesn’t surprise me that much because, for one thing, the logic of human rights is that if a country is violating the rights of a population, either its own or the population of a neighboring country, to say that that country is suspended from sitting in a human rights forum is simply to say that it’s exempted from having to answer for its behavior. We don’t typically, even when countries dramatically violate their treaty obligations, view it as a [legitimate penalty] to suspend those obligations. There’s an expressive logic to saying: you cannot sit on the council if guilty of gross violations. On the other hand, what did Russia do? It turned around and immediately withdrew on the same day. The Trump administration had withdrawn from the Human Rights Council two years earlier, which doesn’t strengthen the Council or its capacity to impose accountability, which returns me to [your] original question about the Commission of Inquiry, which is an effort to generate accountability against the backdrop of a circumstance in which the Security Council is disabled.
The Commission of Inquiry was voted for with only two opposing: Russia and Eritrea. The mandate includes investigating all alleged rights violations and abuses related to crimes and recommendations on accountability measures. So, they’re specifically told to collect evidence of violations and identify individuals and entities that are responsible; provide updates, not just to the Council, but also beyond the council to the General Assembly, with their findings and recommendations. What this is, is a mechanism for evidence preservation and one that is coming from essentially a third-party body, an interstate body. It’s not a human rights organization. It’s not a technical body of experts. The Commission [of Inquiry] is, but the Human Rights Council is the one that’s convened it. So, an intergovernmental entity is asking the expert body to collect this information in order to make it unimpeachable to the extent possible then to submit it to the political organs of the United Nations in order to begin making recommendations on accountability.
Are there examples of commissions like this implementing accountability mechanisms that you think really worked?
Well, there was a Commission of Inquiry, similarly with respect to Libya, and there was a referral of the Libyan regime to the International Criminal Court for further investigation. In the [Ukraine] case, the International Criminal Court has announced an investigation into allegations of crimes against humanity being committed in Ukraine. And this is based on earlier requests that the Ukrainian government made in 2014 and 2015.
Ukraine is not a party to the International Criminal Court. Russia is not a party to the International Criminal Court for that matter. The U.S. is not a party in the International Criminal Court. So its jurisdiction is challenging. But Ukraine voluntarily requested that the ICC investigate, which gives the ICC some kind of a foothold.
In Libya, you had a massive NATO intervention. You had the regime toppled that was being accused of war crimes. And it was still very difficult to gain personal jurisdiction over individuals who were accused of having masterminded crimes, and therefore difficult to actually move forward with meaningful accountability. Ultimately, Gaddafi was killed, but his son who’s still alive travels freely in Libya, and has run in elections in Libya and sought to regain control of the country. So there are real limitations on the ability to prosecute some of these cases.
On the other hand, the ability to isolate a country and frame it as a country that is violating core standards of membership in the international community has been powerful. So even as the president of Sudan, Omar Bashir, was never actually prosecuted, the threat of prosecution, the investigations into crimes that may have been committed by his regime and Sudan, contributed to undermining his regime and, over time, to the democratic revolt in Sudan that led to an end of his presidency. Other forms of accountability were [then] possible once the regime had changed within that country.
In the absence of an outright Russian defeat, it will be very difficult to obtain access to suspects necessary to engage in meaningful accountability against Russian actors. But that doesn’t necessarily end the expressive significance of these moves. At the end of the day if there is an unwillingness on the part of the Russian population to continue to bear the price associated with sanctions and a desire to seek a different kind of government, and if the Putin government were no longer in power, the possibilities would be much greater.
There’s been growing speculation that the Russian president Vladimir Putin has already or may use chemical weapons in Ukraine. If that does occur what will the international response be? What should it be?
It is unclear whether or not the use of chemical weapons would be treated as a red line of some kind that, once crossed, would trigger an array of tools against Russia different from those we’ve already seen. In the past, Russia has been involved in the conflict in Syria, where there were very credible allegations of use of chemical weapons against the civilian population. And that triggered a set of responses in the international community that led ultimately to negotiations around removal of chemical stockpiles, and limitations on the kinds of weapons that might be used in Syria. And then, although there weren’t immediate airstrikes, which were threatened at the time against Syria under the Obama administration, the Trump administration did engage in some very limited targeted airstrikes in Syria allegedly in response to chemical weapons use, although the Trump administration never really offered a legal rationale.
It’s not clear if a precedent was set from a U.S. perspective or internationally, but the Russian general now in charge of the war effort in Ukraine was the person in charge of the effort in Syria at that time. So that’s troubling. The Biden administration has said that the nature of any Western response to chemical weapons used by the Russians would depend on the nature of that use. If there is evidence of broader use of chemical weapons, [it will] probably trigger [further] sanctions, probably a complete termination of energy imports from Russia and Europe, and a significant increase in the transfer of assistance to Ukraine in terms of advanced weaponry, and cybersecurity assistance equipment to protect against chemical threats, et cetera.
But we also know from the weekend that the CIA director, William Burns is worried about the threat of Russian use of tactical or low yield nuclear weapons. There’s no evidence that that’s being planned at the moment, but that would have very substantial, troubling repercussions. His remarks may have been intended as a deterrent or a warning of some kind, but I do think there’s evidence based on his comments and president Biden’s comments that the U.S. is doing significant contingency planning to decide how to respond in the event of substantial chemical weapons use, or the possibility of a tactical nuclear weapon or extending this war beyond Ukraine, to Moldova, Georgia.
All of this raises the question: is there a threshold beyond which a NATO intervention becomes either unavoidable or much more plausible?
Obviously, there are very good reasons to keep that threshold very high because a NATO intervention runs the risk of a third world war at a level that could escalate far beyond what we’re seeing at the moment.
Is there anything that the U.S. and other countries can do again, should be doing, right now to protect civilians?
We think, as I’ve already suggested, that the numbers of civilians that may have died in Ukraine number in the tens of thousands. The number of infants and children who have died of famine and malnutrition [outside of Ukraine, due to the global food crisis] in the same period is far larger. But these are statistics—these aren’t pictures of babies dying on our television screens. Yet, what would be required [to help people facing famine conditions] is much less than the tens of billions of dollars of defense equipment that are being sent. It would require releasing emergency stocks of food and grain and releasing assets in the case of Afghanistan, in order [for that country] to be able to acquire [emergency] foodstuffs on global markets.
We would need to take very aggressive measures to address, in large parts of Africa and in the Middle East and parts of Asia, particularly Afghanistan, massive food shortages that are on the horizon, if they haven’t already struck, which they have in places like Yemen and Afghanistan. So that’s absolutely crucial and necessary if we’re serious about protecting civilians.
In terms of what can be done to protect civilians in Ukraine, we can strengthen Russian incentives to respect international humanitarian law. Even if the deterrent of later prosecutions may seem unrealistic, the constant attention to the alleged violations is very important, even to the morale of the Russian people to have this constantly broadcast globally. It’s very important to underscore over and over again what the norms are for protecting civilians and where Russia fails. This is where the Human Rights Council and other bodies not impeded by the veto can have findings, can convene meetings and emergency sessions, and systematically dominate the global agenda with the focus on civilian protection, the safe, unimpeded, humanitarian access to civilians in the country is critical. The ICRC has been able to enter at times, but not well enough.
We saw this in Syria. One of the core things that was negotiated in the Security Council, where many resolutions about the conflict itself were vetoed by Russia, you were nonetheless able to have negotiations about humanitarian corridors to allow food and medicine and humanitarian assistance to enter, and to allow civilian evacuation from parts of the country. All of these channels can be negotiated. There’s every reason to engage with the Russians, to try to create conditions that help protect Ukrainian civilians. You could [also] waive restrictions that remain on the refugees in Europe, supplement temporary protective directives to ensure that they receive safe shelter, but then also facilitate through the UN High Commissioner for Refugees and other efforts, significant relief initiatives to bolster resources available to Poland and other frontline countries that are absorbing these populations.
The most important thing that the United States and other countries could be doing right now is encouraging peace negotiations. And that hasn’t really been the case. The race to frame Russia as an aggressor, which it clearly is, has eclipsed to some extent the benefits of trying to achieve a near-term ceasefire and eventual negotiated peace agreement. Efforts in Israel, efforts in Turkey, have been treated with some mixed skepticism. And there might be every reason to be skeptical of Russian intentions.
And yet, we don’t make peace with adversaries by putting our faith in their intentions. But we nonetheless have to engage, and we have to engage in a way that identifies an achievable set of results.
Russia will only terminate this conflict if it can have some face-saving claim of success of some kind. Thinking hard about what that might look like is important—and the Ukrainians did. Last month they had a proposal on the table in Istanbul that would involve neutrality and non-NATO status for Ukraine. And this [might] be framed as [sufficient to constitute a version of] the “liberation” of Donbas. So it could be repackaged as achieving Russian war aims, but in exchange, Ukraine insisted on strict legal binding guarantees from other countries, including the United States, that it would be protected in the event that it was attacked. But then on the flip side, [the proposal also included] a commitment on the part of Ukraine not to enter into other kinds of military and political alliances, and contemplated a set of complicated further negotiations about how to deal with [Russian territorial claims over] Crimea and the Donetsk and Luhansk oblasts in Donbas, possibly with international supervised referenda concerning their future status.
We’ve seen [negotiated de-escalation] like this that ended the war in the Balkans. We’ve seen similar paths [of negotiations and referenda] in the case of Kosovo. It is important to try to [strategize] and put enormous amounts of political capital into finding some way to end the war immediately, because there is no way to protect human rights in the context of war. That’s the truth. There are rules. There are goals. [But whatever the international human rights rules may require,] the truth is civilians are always going to be in harm’s way as long as the fighting continues.
We live in a time where authoritarians are seemingly on the rise and even long longstanding democracies seem to be faltering or are being challenged from within. Countries are also increasingly interconnected and interdependent. In this context, is the ability of liberal democracies to promote and protect human rights changing?
There was a heyday for the promotion and protection of human rights in the 1990s in the immediate aftermath of the Cold War. Post-9/11, the global war on terror substantially impacted the claim on the part of liberal democracies that their principal goals and commitments were the promotion of protection of human rights. And while democracy promotion, the protection of human rights, are certainly noble ends, when these goals are delivered at the point of a gun, as they regularly came to be in the context of the war on terror—from Afghanistan to Iraq, to Libya, to Yemen and beyond—the reality is that this typically worsened the suffering of those living under authoritarian rule, rather than delivering anything like the promotion and protection of human rights.
Moreover, we haven’t been in a rush to defend, promote, or protect human rights in many places before Ukraine, including places where Russia used very similar military strategies as with Chechnya and Syria, both of which presaged the course of the current war in terms of the specific kinds of atrocities that were committed with almost no intervention. And so, we have to think carefully about the degree to which liberal democracies have committed themselves in the last 25 years to the protection and promotion of human rights, other than quite selectively.
The other thing to worry about is the propensity to frame this conflict as the harbinger of a new cold war. To frame Ukraine as an occasion to save democracy from a battle with autocracy is a familiar groove for the United States that brings back Cold War certainties in ways that are comfortable [for some policymakers]. And the good versus evil framing enables a lot of things, but it also masks a lot of things that have been happening. The war on terror damaged the credibility of liberal democracies. In many parts of the world, [that] were on the receiving end of what came to be a kind of global conflict, little regard was shown for the human rights of the populations on the ground.
Now, I don’t mean to suggest that there’s an equivalence here. What Vladimir Putin has done is an unprovoked aggression against a functioning democracy [with the apparent goal of] annexing territory. But we have certainly engaged in interventions with the goals of regime change that sit uncomfortably with claims of human right promotion and protection. That damage [to our] credibility is part of the story of the backsliding on democracy that we see today. Some of the challenges we face here domestically with the rise of certain kinds of authoritarian actors and narratives have been tied to increasing concentrations of power in the executive, which were one of many of the consequences of war on terror thinking and systematic national security emergency constitutionalism at home.
It’s important for us to be wary of the ways in which further military engagements can underscore the tendencies that have been harmful to democracy here and abroad by deploying an us-versus-them framing of good and evil, democracy-versus-autocracy.
Let’s close with this thought: what the Ukraine war has ushered in is a sudden willingness to increase defense spending across Europe. The United States has long sought this. But in fact, in many ways, what we need instead is the bolstering of a different kind of internationalism—one that treats states more equally, [such that when] any of them break the rules, instead of being able to wield a veto that blocks any kind of meaningful action to protect civilians, [they] would be subject to the same rules as other states. That’s what we lack: a multilateral system that genuinely disincentivizes use of force and violence to achieve foreign policy ends for the powerful. By increasing defense spending in Europe and bolstering military alliances [around new global] divisions, whether it be against Russia or in the South China Sea with respect to China, instead of strengthening democracy and promoting and protecting human rights, I fear that we’re unleashing dynamics that will do exactly the reverse.
The music featured in the IGCC podcast is courtesy of Gato Loco de Bajo.