Is the Kursk operation an occupation? How to punish Russia for obstructing the International Committee of the Red Cross? Interview with the chief legal director of the organization Cordula Dröge

On September 12, Russia killed 3 and wounded 2 employees of the International Committee of the Red Cross (ICRC). It was on this day that ICRC held a conference in Kyiv on the occasion of the 75th anniversary of the Geneva Conventions, which define the rules of warfare. These conventions protect civilians, wounded soldiers, prisoners of war and medics, and they prohibit attacks on humanitarian organizations, including the Red Cross. The ICRC chief legal director Cordula Dröge came to the conference. Babel correspondent Oksana Kovalenko met with her a day before the tragic event, and asked why ICRC fails to effectively fulfill its main task: visiting Ukrainian prisoners of war.

You came here and probably met with the authorities. What did you talk about?

I met with representatives of the Ministry of Foreign Affairs, the Ministry of Justice, as well as other ministries. And since I head the legal service of ICRC, we talked about international humanitarian law: about the challenges that Ukraine faces; as well as how to understand, support and protect international humanitarian law in modern conflicts.

Part of the Kursk region (Russia) has been under the control of Ukraine for about a month now. You represent ICRC, which is best versed in international humanitarian law. Is this territory considered legally under Ukrainian occupation?

We werenʼt there, so I canʼt judge. I can explain how the law of occupation determines whether a territory is occupied or not. There are several criteria: whether the country has lost control over its own territories, whether the territory has come under the effective control of the foreign military, and whether the military is able to manage the territory and sustainably provide for the basic needs of the population. So whether there is an occupation or not is a factual question that is not related to whether it is a defense or an invasion.

Ukraine has placed a commandantʼs office there. Does this mean that it has effective control over part of the Kursk region?

I canʼt tell you exactly because I donʼt know the situation there. But really, what happens if you start to control the territory? The occupying state is obliged to take care of life and safety, as well as to ensure that the population under occupation can meet its basic needs. Usually, the occupying power creates a military administration to administer the territory. If you have created such an administration, then you have a certain level of control that allows you to do this.

And what is the status of the Russians who are currently in the Kursk region?

As soon as the territory comes under occupation, the local inhabitants are protected by the 4th Geneva Convention.

Have you asked the Ukrainian or Russian authorities about the situation in the Kursk region? For example, did they ask to deliver humanitarian aid or organize an evacuation corridor?

We have delegations in Russia and Ukraine. We talk to both sides about how the conflict might develop. But we only hold bilateral confidential meetings. And we do not publicize these discussions, because we want to maintain neutrality, which allows us to act effectively.

But you asked for access to the Kursk region? Do you need to be there?

To get to the Kursk region, we need the consent of both parties, as well as security guarantees. We invited them.

Likewise, you did not get to the territories occupied by Russia...

Since 2014, ICRC has offices in both Luhansk and Donetsk. We help hospitals with medical equipment, support some families who are in a difficult situation.

Yes, but in those territories that Russia occupied after 2022?

We are not there now.

Letʼs compare the behavior of Ukraine and Russia in the territories occupied by them — do you see the difference?

I will not be able to answer this question. ICRC works to ensure that international humanitarian law is observed by all parties to the conflict. And that is why we cannot take sides. We follow this principle everywhere: in Asia, in Europe, and everywhere. If we are concerned about the actions of one of the parties, we communicate with the relevant authorities of that party only, and only confidentially. Our experience shows that this is the best way. Sometimes it is very slow, but it is the best way to improve the situation for the people in the occupation.

You say that you have been negotiating with Russia for a long time, but do you see progress in this dialogue?

The only thing I can say is the constant dialogue, which I canʼt rate.

This war showed that international law, based on the goodwill of states, does not work very well. Recently, families of Ukrainian soldiers picketed the ICRC office in Kyiv, because, in their opinion, the Red Cross failed to cope with a key task — gaining access to prisoners of war and passing on information about them. This is a really problematic issue for ICRC, because Russia does not allow such access. Are there mechanisms other than requests and dialogue to gain this access to captives?

Two Geneva Conventions give ICRC the prerogative to visit prisoners of war. Both sides of the conflict are obliged to allow ICRC to reach these people. But this does not mean that ICRC has the key to the prisons where they are held. We are in dialogue with the parties to convince them to grant us access. It is very important that these people are able to pass on messages to their families. We understand and share the concerns of the families of those who have gone missing. But states are obliged to respect international humanitarian law. All countries of the world have signed and ratified the conventions. ICRC can only convince them, and we will not stop these attempts.

Some violations of conventions are war crimes and are punishable by the International Criminal Court (ICC). Maybe it is worth criminalizing situations when states obstruct the work of ICRC and violate the Geneva Conventions?

In 1949, when the Geneva Conventions were adopted, states agreed that some violations of the Geneva Conventions are serious crimes, and any country in the world can prosecute violators for them. For example, for torture. The ICRCʼs denial of access is not a serious violation. In 1977, states adopted a number of protocols and criminalized another list of actions. But even then, the ICRCʼs refusal to access him did not enter.

But there is actually another question you should ask yourself. Will this really improve the situation and give us access?

But international law does not work without the goodwill of states.

Political will is indeed what is needed. Because there are no policemen in international law. The only one who could have comparable influence is the UN Security Council, but as we know, sometimes states ignore even Security Council resolutions. There is no silver bullet to solve this problem.

So I donʼt think that criminal liability is going to be a tool that will help us in our dialogue with states.

Drones became a novelty of this war. From my information, you are thinking how to regulate the use of drones, is that right?

We call for a new treaty on autonomous weapons systems. Autonomous weapon systems are not necessarily the same as drones. Such a weapon can be attached to any carrier: to a drone, to any robot, to a naval system. So, we are not looking at a drone as such, but an autonomous function.

When using autonomous systems, there is no person making decisions about the target. And this raises huge questions from the point of view of humanitarian law. Can you distinguish between legitimate and illegitimate targets? Can we leave life and death decisions to algorithms and sensors? We hope that the states will be able to unite to settle this issue.