The International Law of Protected Spaces and the Collapse of the Humanitarian Corridors in Ukraine

As the war in Ukraine deepens, the UN Refugee Agency has warned that Europe sits on the precipice of its ‘largest refugee crisis this century’. Over a million people have already fled the Russian invasion within the first seven days of conflict alone, and numbers are expected to rise exponentially. Simultaneously, while the refugee crisis grows in the West, more than 12 million people remain under siege within Ukraine, including many still trying to leave. Subsequently, calls to create ‘humanitarian corridors’ have been a major point of discussion during recent peace talks between Moscow and Kyiv, and although a cessation of hostilities has not been procured, negotiators have at least tentatively agreed to the creation of humanitarian corridors to facilitate the mass exodus of civilians from conflict zones. Although details about the operation of these corridors have been scarce, Ukrainian presidential aide Mykhailo Podolyak and Russia’s main negotiator, former culture minister Vladimir Medinsky, have specifically indicated that temporary ceasefires would be implemented ‘in places where humanitarian corridors [are] being set up and for the duration of civilian evacuations’.

The first corridors created under this tentative agreement were to have opened in the Ukrainian cities of Mariupol and Volnovakha on 5 March 2022, during which Russian and Ukrainian forces were expected to stop military operations to allow for the safe passage of civilians through specially designated routes. Accounts emerged, however, that these promises were not upheld. The deputy prime minister of Ukraine, Iryna Vereshchuck, condemned attacks on negotiated routes as a violation of the ceasefire by Russian forces. Russian Foreign Minister Sergei Lavrov responded by claiming that Kyiv was responsible for the obstructions and Russia was not targeting civilians.

While highly valuable tools, if not properly implemented and policed – or if reneged upon by either party and attacked – humanitarian corridors can expose vulnerable civilians to greater danger. Thus, it is vital that clear guarantees of security be pursued if the use of humanitarian corridors remain a possibility. To better understand this situation, some observations about the international law of protected zones are offered.

I. Protected Zones and Humanitarian Corridors under International Law

What are humanitarian corridors, and how are they regulated? Here, some confusion may arise due to the conflation of the all-encompassing terms ‘safe zone’ and ‘protected zone’ in common usage. Under international law, different kinds of protected zones can be created either by the belligerents or an external party. Their general purpose is to ensure civilians are separated from theatres of active combat. Depending on how they are created and other relevant characteristics, they will be subject to different legal regimes respectively.

A brief primer on the typologies of protected zones is helpful here. The Laws of Armed Conflict (LOAC) only apply to certain kinds of ‘protected areas’. These are regulated by various provisions within the 1949 Geneva Conventions (GCs) and its Additional Protocols, which refer to hospital zones/localities, safety zones/localities, neutralized zones, and demilitarized zones respectively. These zones are conceptually distinct. For instance, Article 23(2) GC I and Article 14 GC IV allows for the parties to an international armed conflict to ‘conclude agreements on mutual recognition of the hospital zones and localities they have created’ in locations well beyond the battlefield. Additionally, Article 15 GC IV permits parties to establish temporary ‘neutralized zones’ through written agreement in areas of active combat. These areas are intended to provide shelter ‘without distinction’ to ‘wounded and sick combatants or non-combatants’ and ‘civilian persons who take no part in hostilities […]’ that retreat to them. Finally, Article 60 Additional Protocol I (API) to the 1949 GCs expand the categories of protected zones regulated by the LOAC to include ‘demilitarized zones’ (DMZ). As noted by the ICRC commentary, while DMZs can mean many things in a modern context, particularly in peacetime situations, Article 60 refers to a specific notion. As with other kinds of protected spaces, API’s DMZs are only possible through the agreement of the parties (Article 60(2)). They are meant to guarantee the protection of civilians in combat zones by ensuring that designated spaces may no longer be used for any military purposes, including the staging of troops and resources for future military objectives (Article 60(3) and (6)). The ICRC’s customary international law database specifically notes that attacks on demilitarized zones constitute a ‘grave breach of Additional Protocol I’.

These kinds of protected zones must be distinguished from safe zones/areas/havens that are ‘secured by force (security zones)’ in the absence of a mutual commitment by the belligerent parties. These areas are not subject to regulation under the LOAC, but instead have a legal basis in the ius ad bellum. This is because they are enforced by a party external to the conflict, and prima facie violate the sovereignty of the territorial State, constituting a potential breach of Article 2(4) UN Charter. The majority of these kinds of ‘security zones’ are brought about through operation of UN Security Council fiat (bringing them within a recognized exception to the injunction) and thus do not ultimately violate the prohibition of the use of force. Although these kinds of protected zones are not the present focus of this comment, the fall of the infamous safe zone in Srebrenica should be noted as an example of how difficult the installation, maintenance, and policing of spaces where there is no or limited agreement between belligerents is.

What are ‘humanitarian corridors’ and how do they fit within this general typology? The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) defines humanitarian corridors as:

‘[s]pecific routes and logistical methods agreed upon by all relevant parties to allow the safe passage of humanitarian goods and/or people from one point to another in an area of active fighting’.

They are typically narrow avenues designed for specific purposes, with a limited temporal duration (which can be as brief as a few hours or as long as several years). In other words, they fall within the understanding of DMZs described in Article 60 API. Specifically, Article 60(3) provides a template through which it explains what it considers to be the fundamental features of a DMZ. Although the details of these conditions can be modified through negotiation, API in essence designates as DMZs those spaces where the parties express a consensus ad idem to the complete removal of combatants and weaponry, and the prohibition of any kind of military or hostile activity within. These traits clearly align with OCHA’s definition of a ‘humanitarian corridor’. Indeed, these spaces could not function as designed if such conditions were not satisfied to begin with. This is recognised by the parties in Ukraine, whose initial announcement of an agreement to create these corridors was concurrently accompanied with details of the temporary ceasefires that would serve as preconditions to their enactment. As the corridors negotiated in Ukraine meet the general requirements of Article 60(3) API, and are reliant on the good faith of the belligerents to ensure the safe passage of non-combatants, they are subject to the regulation and protections of the LOAC. Notably, the Russian Federation’s 2001 Regulations on the Application of International Humanitarian Law (Russian Military Manual) specifically recognizes that demilitarized zones are ‘objects protected by international humanitarian law’.

II. The Need for International Supervision and Peacekeeping Forces in Ukraine’s Protected Areas

The almost-immediate collapse of Ukraine’s negotiated ceasefires in inter alia Mariupol and Volnovakha are a strong indicator of Moscow’s bad faith approach to ongoing negotiations. Although disappointing, this is not surprising given President Putin’s increasing volatility, unpredictability, and perennial dishonesty. Careful observers may recognize similar tactics used in previous engagements in the region, specifically the Ilovaisk massacre. In 2014, the Ukrainian government had negotiated the surrender of the besieged town of Ilovaisk (in the southeast of Donetsk) to pro-Russian forces. Under the agreement, volunteer battalions would have been allowed to withdraw through a ‘green corridor’. Accordingly, Putin declared a ‘humanitarian corridor [to allow] for besieged Ukrainian soldiers in order to avoid senseless victims’. This was ultimately revealed to be an ambush. The incident resulted in the deaths of ‘hundreds’ of volunteer fighters, and the capture of dozens of others, according to reports. The Ilovaisk incident was a likely act of perfidy, which is forbidden under Article 37(1) API. The impermissibility of perfidy as a prohibited method of warfare is also affirmed in Russia’s Military Manual.

The repeated attacks on the humanitarian corridors in Ukraine will likely be seen as further additions to a mounting litany of probable war crimes committed by Russian forces. Incidents like this previously led one commentator to speculate that DMZs were being proposed in bad faith and cynically co-opted as a military strategy to destabilize opposition forces. If these attacks indeed reveal Putin’s unwillingness to discriminate between civilians and combatants, the prospect of a genuine and effective humanitarian corridor may no longer be viable. 

If these events are not portents of malice towards Ukrainian civilians, then viable protected spaces may still be achievable. However, it is clear that future humanitarian corridors must not be made solely reliant on Russia’s good faith to respect its undertakings. So what options are there to secure these corridors and ensure the safety of civilians that use them?

Here, the ICRC customary international law database observes that:

Practice indicates that international supervision is seen as an appropriate method of verifying that the conditions agreed upon are respected. The agreement may authorize the presence of peacekeeping forces or police personnel for the sole purpose of maintaining law and order without the zone losing its demilitarized character.

There are few if any options for direct international engagement in the immediate state of the crisis, particularly given the volatility of the ongoing territorial conflict. In the short term, the security of Ukraine’s humanitarian corridors lie in the hands of the belligerent parties. Yet, an increasing focus on the need for humanitarian corridors within the international community suggests this will likely be an ongoing issue in Ukraine. Thus, it would be prudent to begin planning for how to secure these protected zones over the long term. In this regard, future corridors cannot be relied upon without some form of international supervision.

If it is possible for the parties to agree to modified terms that would allow for the independent surveillance of Ukraine’s safe zones, then UN peacekeeping forces would likely be best suited to undertake these responsibilities. Of course, the US has been clear about its unwillingness to engage in a direct confrontation with Russia over Ukraine, and will likely be reluctant to put boots on the ground in the form of a robust peacekeeping operation. But this is not necessarily a problem, as a Chapter VII mission is not the best option. Rather, a traditional Chapter VI peacekeeping mission authorised by the UN General Assembly would provide the most effective means of consolidation for Ukraine’s future humanitarian corridors. Chapter VI operations, which may take the form of observational or interpositional missions, do not require an enforcement mandate. They are normally apolitical, unarmed or lightly armed, provide a buffer between opposing forces, and track and report on matters of compliance. Per the Capstone report:

‘traditional peacekeeping operations enable each party to be reassured that the other party will not seek to exploit the cease-fire in order to gain military advantage’.

Of course, planning these missions will take time. However, there is currently an opportunity to consider the logistical issues that are likely to arise (like which countries could contribute troops) such that the international community will be ready to intercede if and when the opportunity arises.