The Regulation of Levées en Masse: Extending Participation to Diaspora Populations
The levée en masse (i.e., mass uprising) is a relatively rare form of conflict participation recognised by international humanitarian law (IHL). It was last expressed in treaty form in Geneva Convention III (GC III), which extends prisoner of war (POW) status, and thus combatant status more generally, to “inhabitants of a … territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces.” The concept also finds (non-authoritative) expression in Rule 106 of the International Committee of the Red Cross’s (ICRC) Customary IHL Database.
This post briefly outlines the policy and legal arguments in favour of recognising non-resident citizens as legitimate participants in levées en masse, drawing on my previously published full-length article.
A Primer on Levées en Masse
The levée is unusual because combatant status is normally preserved for members of national armed forces and militias. A levée combatant, from a legal point of view, is fully on par with a servicemember and shares all the usual rights and burdens of such status. As Ilya Nuzov notes,
combatants … are entitled to PoW status and enjoy “combatant immunity” [whereby] they are allowed to directly participate in hostilities and cannot be prosecuted for the mere participation in combat [but may] be targeted at any time by the opposing army’s armed forces, even while not participating in hostilities.
The full alignment with regular combatants sets levée combatants apart from those engaged in the more modern notion of direct participation in hostilities (DPH). Direct participation in hostilities does not afford combatant status. The ICRC has confirmed State interpretations that such persons can be targeted “as if … a combatant” but, crucially, gain no concomitant ”combatant privilege.”
The Renewed Relevance of Levées
Despite its powerful implications, the concept of the levée was, until recently, written off by many IHL actors and scholars as an anachronism. The ICRC considers it to be of “limited current application.” Likewise, and somewhat embarrassingly, I described the concept as a “quaint notion” as recently as 2020.
This dismissiveness was linked to the rather dusty atmosphere that seemed to surround the levée. The concept, as the name would imply, has its origins in the French Revolution and was carried over to international law discourse by the (unratified) Brussels Declaration of 1874. It conjured images of villagers with pitchforks trying to defend their farms from minor border incursions by the neighbouring Grand Duchy. It seemed to represent the antithesis of modern warfare and became something of an afterthought in the twentieth century when tanks and other heavy weaponry became fixtures. As Professor Knut Ipsen explained, in modern conflict “regular armed forces … are armed to a degree that simply cannot be countered with the weapons available to a spontaneous resistance.”
Indeed, it seemed hard to imagine a scenario in which civilians would be prepared to repulse a modern military, until February 24, 2022. On that day, Russia initiated its full-scale invasion of Ukraine (having already seized Crimea in 2014). Ukrainian President Volodymyr Zelenskyy urged people via Twitter to “be ready to support Ukraine in the squares of our cities.” Ordinary citizens answered the call and took up arms in droves, with one newspaper dubbing them the “tracksuit resistance” whose AK-47 and Molotov-cocktail wielding images were broadcast around the world. In short, Ukraine demonstrated that spontaneous mass uprisings can still happen. Tomorrow, it may be Taiwan or any of the other strategic flashpoints that exist around the world.
The Inhabitation Criterion and the Exclusion of Diaspora Populations
The right to participate in a levée is not absolute. Rather, certain criteria must be met. For the purposes of this post, I focus on the criterion that the individuals in question must be “inhabitants” of the affected territory (as we saw from GC III). This requirement has been affirmed consistently in the literature by scholars such as Professors Buchan and Tsagourias and Brigadier Generals Wallace and Reeves.
On the face of it, there is nothing particularly objectionable about the “inhabitant” requirement. After all, the idea of the levée is to allow individuals to respond “on the approach of the enemy.” Historically, and certainly in the times when the levée was conceived, it would only have been those individuals present in the territory who would have seen the approach of the enemy. And it would only have been they who could have responded promptly enough to take up arms in the repulse effort. Thus, other categories of persons, notably “citizens” of the invaded country who do not currently live there, have no entitlement to levée combatancy. They were regarded as being too far away to be affected by the invasion or to respond to it. This limitation was reiterated as recently as 2023 in the United States Department of Defense Law of War Manual, which states that “non-inhabitants who travel to a territory to resist invading forces would not be entitled to participate in a levée en masse” (§ 4.7.1.2).
The exclusion of non-resident citizens (diaspora populations) from levées has received scant little consideration by lawmakers, militaries, or academia. However, the world has moved on from the days of the French Revolution against the backdrop of which the regulation of levées was born. It is high time we reviewed this neglected area of law and, in my view, permitted willing members of diaspora populations to return to defend their homelands against unfolding invasions clothed in the status of combatancy.
The Rise of Diaspora Populations and the Shrinking of the World
One justification for including diaspora populations in the pool of levée combatants is simply that there are so many more of them now than there were when levée rules were initially conceived. According to the United Nations Department of Economic and Social Affairs, “migration is a part of today’s globalized world,” which in 2020 saw 281 million people living outside their country of origin. That is around 3.6% of the global population. This exceeds even the 2.4% of people living outside their country of origin after the great displacements caused by the Second World War.
Moreover, modern diaspora populations have access to far better information and technology than their ancestors ever did, and so are far more likely to hear about (and respond promptly to) an invasion of their distant homeland. For example, they have access to 24-hour rolling news and social media sites such as X that can inform them of events back-home in real time. Indeed, such innovations have been credited with facilitating the birth of the Arab Spring. In addition, modern commercial jet-based air travel enables people to travel home far more quickly (and cheaply) that was ever possible previously in human history. Indeed, until the middle of the twentieth century, most still relied on sail or rail travel.
Not only are there larger, more aware, and more mobile diaspora populations today, but also these groups are prepared to fight when required. This is a predictable reaction given that most emigrés retain some degree of familial, friendship, housing, cultural, or financial ties to their erstwhile homeland. Indeed, in the context of early days of the Russian invasion of Ukraine, the Ukrainian defence minister Oleksii Reznikov estimated that “66,224 … men returned from abroad [by March 5, 2022] to defend their country.” To leave these people in the legal limbo of unlawful belligerency is undesirable.
Levées Roots in Patriotism
Another justification for enabling diaspora populations to participate in levées is that levées are rooted in the notion of patriotism. Against the backdrop of the Hague Conferences of 1899 and 1907, Switzerland implored delegates not to “punish love of country; do not adopt rigorous measures against peoples who rise in a mass to defend their soil.” More recently, Professor Christopher Waters summarised that levées are “driven by patriotism (or fear) to defend [one’s] country.” This is surely true and, indeed, when the Russian invasion of Ukraine began, the Ukrainian government called out on social media that “[w]e give weapons to all patriots!” The call did not limit itself to arming only inhabitants.
Given that levées are rooted in patriotism, it is odd to tie participation in a levée to inhabitation and the exclusion of citizenship. As Professors Buchan and Tsagourias note, this peculiarity is exacerbated by the fact that the current law enables “non-Ukrainian[s] … who are inhabitants … of the invaded territory … to resist the invading force.” Inhabitants of a country may or may not have any patriotic connection to it, and if they are simply there for work or study, then they may be more inclined to make a swift exit in the case of invasion than to stay and fight. That was the case in Ukraine, where there were reports of international students fleeing the Russian invasion.
Citizenship of a country typically marks a stronger connection than a weaker one, and it usually comes with enhanced rights such as voting and the ability to stand for public office. The United States Constitution, for example, requires representatives to have been a citizen of the United States for at least seven years before taking office. In this respect, IHL is out of step with other legal domains.
Preserving the Equality of Belligerents
A final justification for enabling diaspora populations to participate in levées is that it will help to preserve the equality of belligerents. Allowing diaspora participants to defend their home States would even out an emerging imbalance between aggressor States and attacked States in the context of which individuals may participate in armed conflict.
It may seem surprising, but there is no requirement in GC III that military personnel or militia members be inhabitants or citizens of the territory for which they are fighting, or indeed to have any connection whatsoever. The ICRC interprets that all that is required is for the individual to have been “formally incorporated.” This leaves States with a lot of latitude when it comes to deciding who is a member of their armed forces.
In practice, this is more likely to benefit aggressive, militarily proactive countries as they can freely absorb anyone into their militaries in preparation for an attack. In the context of the Russian invasion of Ukraine, this enabled the Kremlin to use Wagner Group mercenaries. Wagner Group was described variously as a private military company, a network of mercenaries, and Vladimir Putin’s private army.
In contrast, the defending country will likely not have taken the steps to beef up its forces in this manner. For Ukraine, the result of this imbalanced position was that it had only its regular complement of standard armed forces at its disposal. This placed it at a disadvantage against its Russian invaders. To enable diaspora populations to return home to fight for their country with the legal benefits of combatants would help address this imbalance.
Conclusion
The notion of levée en masse is a unique category in IHL that extends full combatant status to individuals who choose to defend their country from invasion. Those who participate receive full combatant privilege, including the right to fight and to POW status upon capture, but they may also be targeted by the enemy in the usual manner.
Presently, only individuals who are inhabitants of the invaded country may lawfully participate in a levée. This is a flawed position that fails to account for non-resident citizens. It ignores the vast increases in global diaspora populations who may wish to defend their homeland. The current position also ignores the historical roots of the levée in patriotism, with citizens having just as strong, if not a stronger, claim to patriotic affiliation as inhabitants. The law as it stands also presently ignores the role that diaspora populations could play in leveling the current imbalance in equality of belligerents, with aggressor States currently having more leeway to recruit combatants to their cause than defending States. For these reasons, willing members of diaspora populations should be able to return home to participate in levées.
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Dr Elliot Winter is a legal academic specialising in international armed conflict and global security law. He is a faculty member at Newcastle University Law School in England.
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: Ministerie van Defensie
