1. Out-of-context claims
Tom Mutch, a New Zealander reporter who personally met and discussed the report with Donatella Rovera, the lead author of the report and Amnesty International’s Senior Crisis researcher, and the Amnesty staff in Kramatorsk:
If what Tom Mutch said is true, Amnesty committed an egregious error by omitting critical context that some of the buildings occupied by Ukrainian soldiers were already abandoned or evacuated at the time of research.
Bakhmut, one of the cities which Amnesty accused Ukraine of failing to evacuate, was in fact the subject of one of APNews' articles on Ukrainian evacuations.
Amnesty saying they have no info or were not aware of Ukrainian evacuations of civilians from the frontline is horribly wrong and ignorant. This isn't even a contest.
Russian attacks halt plans to evacuate Ukrainian civilians | March 6
Civilians in eastern Ukraine told to evacuate as Russian forces regroup | April 6
Ukraine Rushes to Evacuate Civilians in East as Russia’s Offensive Pushes Forward | April 19
Third Humanitarian Convoy Under Way to Evacuate Civilians from Besieged Ukraine City, Secretary-General Tells Security Council | May 6
All civilians evacuate Mariupol’s Azovstal | May 8
Ukraine struggles to evacuate civilians from devastated eastern city | June 14
Ukraine evacuates civilians from Sloviansk as Russian troops advance | July 6
Zelensky orders civilians to evacuate Donetsk region | July 31
2. Misrepresentations of international law
Amnesty's claim on this subject is maximalist.
We have documented a pattern of Ukrainian forces putting civilians at risk and violating the laws of war when they operate in populated areas.
In other words, Ukrainians are committing war crimes.
Here is what the International Red Cross says about criminal liability under international law:
In fact, it is generally recognized that the defender’s obligations do not create individual criminal liability.
A current imbalance in individual criminal responsibility exists, where an attacker can commit a grave breach of the Geneva Conventions in at least five different ways, but the defender who is in the best position to protect civilians in urban environments faces no such liability.
As the Red Cross publishes, it is legally impossible for Ukraine to have committed war crimes in this context. They may, however, have other obligations.
In Article 58 and 59 of Additional Protocol I, the defender's obligations are detailed.
It is important to underline that a party is not required to evacuate civilians or civilian objects from any built-up area as such, but only to remove them from the vicinity of military objectives.
A defending party may go further and evacuate civilians in accordance with Article 17 of the Fourth Geneva Convention—a point reinforced by the reference to Article 49 of the Convention made in Article 58(a)—but it is not obliged to do so.
And Article 58 either does not apply to urban warfare or gives plenty of leeway for the defenders due to its wording around feasibility:
Article 58(b) directs the parties to avoid locating military objectives within or near densely populated areas. At the diplomatic conference, several states voiced concerns that this obligation could curtail their right to take the most efficient measures necessary for the defence of their national territory. Since the precautionary duties under Article 58 apply only to the maximum extent feasible, France suggested in the case of densely populated territories such as those of metropolitan France, Article 58(b) “could not really become operative” at all (Official Records of the Diplomatic Conference, Vol 6, 213). Italy declared that “it is clear that a State with a densely populated territory could not allow that provision to hamper the organization of its defence” (ibid, 235).
... as France emphasized, the obligation extends only to what is feasible—which is generally understood to demand only measures that are “practicable or practically possible, taking into account all circumstances existing at the relevant time, including those circumstances relevant to the success of military operations” (ibid, 232).
Parties to the conflict will have to weigh whether they can avoid placing military objectives within or near densely populated areas without compromising the successful defense of the area. This decision has more to do with a judgment as to what is practicable—all things considered—rather than what is practically possible. Factors that should feed into this assessment include the nature of the military objectives involved, the military significance of the populated area, the hostile action expected from an adversary and the extent and nature of the civilian harm that the placement of military objectives would pose, as well as the availability and effect of any mitigating measures.
In short, Ukrainians can't be criminally liable for placing civilians near military objectives, and they have no legal obligation to move their military units if the military objective is important enough.
Amnesty attempted to address this with two sentences in their report:
Most residential areas where soldiers located themselves were kilometres away from front lines. Viable alternatives were available that would not endanger civilians – such as military bases or densely wooded areas nearby, or other structures further away from residential areas.
They provide no other evidence as to what viable alternatives were available. They neglected to mention that these built-up areas were military objectives precisely because they were civilian areas that the Russians wanted to take. And they did not make an assessment that balances the military objective with the risk to civilians in those situations. How could they? They're not experts on the Ukrainian military.
Here's what Jack Watling, Senior Research Fellow - Land Warfare, says about that:
The Amnesty report demonstrates a weak understanding of the laws of armed conflict, no understanding of military operations, and indulges in insinuations without supplying supporting evidence.
It is not a violation of IHL for Ukrainian military personnel to situate themselves in the terrain they are tasked to defend rather than in some random piece of adjacent woodland where they can be bypassed.
The Ukrainian military has regularly urged civilians to leave areas of fighting and facilitated them doing so. Forcing displacement is itself a violation of IHL and throughout history many civilians have chosen to remain in areas where there are ongoing military operations.
In setting unattainable expectations of civilian protection, Amnesty trivialises an important issue.
Here is what UN war crimes investigator Marc Garlasco says:
They got the law wrong. Protocol 1 states militaries shall to the maximum extent feasible AVOID locating military objects near populated areas.
Ukraine can place forces in areas they are defending - especially in urban warfare. There is no requirement to stand shoulder to shoulder in a field - this isn’t the 19th century. Ukraine still has an OBLIGATION to protect civilians - but they are taking steps to do so like helping civilians relocate.
And here is what Distinguished Professor of International Law Michael Schmitt says:
Amnesty International’s allegation of unlawful conduct by Ukraine is unconvincing. IHL is a nuanced body of law because it must carefully balance two sometimes competing interests – military necessity and humanitarian considerations.
In my estimation, Amnesty International has acted irresponsibly by making the claim without providing supporting evidence, citing the specific rules that it believes have been violated, or laying out its legal analysis. These failures have deprived Ukraine of a meaningful opportunity to respond and the international community of an ability to properly assess it.
I urge the organization to immediately remedy the situation by releasing its evidence and explaining the legal basis for its conclusion that the conduct violates IHL. As the entity leveling a charge of unlawful conduct, some of which could qualify as a grave breach of IHL, Amnesty International bears the burdens of persuasion and proof. It has not met that burden.
Given that the entire obligation here hinges on the balance between military and civilian needs, and that the civilian needs are intertwined with military objectives in urban combat, the most important question of whether Ukraine failed to fulfill their obligation went unaddressed in Amnesty's report.
Instead, Amnesty merely claims they failed them. This is poor reporting and worse advocacy.
3. Military units in hospitals
Amnesty claims that Ukraine set up military bases in hospitals. This is one part of their claim which could constitute criminal liability, as it's clear in international law that the misuse of protected symbols such as the red cross is a war crime.
Their report goes:
Amnesty International researchers witnessed Ukrainian forces using hospitals as de facto military bases in five locations. In two towns, dozens of soldiers were resting, milling about, and eating meals in hospitals. In another town, soldiers were firing from near the hospital.
Using hospitals for military purposes is a clear violation of international humanitarian law.
Their claim is factually incorrect. Using hospitals for military purposes is not a clear violation of IHL. There are many permissible military uses for hospitals.
One of them is military hospitals. Many of them exist throughout the world, and there is nothing war criminal about them. Some of them exist in war zones as well. For example, the Egyptian Field Hospital at Bagram Airbase that treated 7,000 patients at its peak (for free) was set up in about as "military objective" a place as could be in Afghanistan. It was located right next to the tarmac where the US Air Force was flying missions out of.
It is also perfectly acceptable that civilian hospitals are used to treat and house military personnel. They have in the past, and there is no specific prohibition against that in IHL, as long as there is no intent to shield the combatants inside from enemies.
Another legal military use for hospitals is for the treatment of captured prisoners of war. In fact, IHL specifically obligates militaries to provide adequate medical treatment for POWs.
As Distinguished Professor of International Law Michael Schmitt writes:
The critical provision with respect to the reported behavior is Article 12(4) of Additional Protocol I. It provides, “Under no circumstances shall medical units be used in an attempt to shield military objectives from attack.” But the rule is limited. The mere presence of military personnel in or near medical facilities (aside from those guarding the facility or being treated) is not unlawful absent an intent to shield. Amnesty International cites no facts unambiguously demonstrating such an intent, leaving only speculation as to why they were there.
The DoD Law of War Manual provides, “[f]or example, a hospital may not be used as a shelter for able-bodied combatants or fugitives, as an arms or ammunition depot, or as a military observation post” (§ 7.10.3.1). Setting up a base in a medical compound would certainly qualify, but whether “resting, milling about, and eating” would is questionable.
Yet the rule simply removes the special protection medical facilities enjoy; absent intent to shield, there is no IHL violation.
I suspect that the brief nature of this section in the Amnesty report indicates that they KNOW that this is not a real IHL violation because using hospitals to shield military targets from attack is a very serious charge. If there were any validity to this, they would (and should) have spent more ink detailing their accusation.
Bonus: Neil Hauer, a reporter who spent a few days staying with Tom Mutch and Donatella Rovera in the same hotel in Kramatorsk in May, says that the latter has a pre-set agenda:
Donatella stayed in the same hotel as us for several days in Kramatorsk in May. It was quite clear from conversations that she had an agenda already - to be contrarian and 'well akshually Ukraine is just as bad' before she even began her fieldwork there.
