Application of IHL by and to Proxies: The “Republics” of Donetsk and Luhansk
From March 2014 until 23 February 2022, Russia denied any involvement in Ukraine (other than Crimea which it has annexed). It claimed that hostilities in the Donbas were conducted by forces of the “republics” of Donetsk and Luhansk (the “republics”). Ukraine argued from the very beginning that the “republics” were merely agents of Russia. But Ukraine never recognized that the conflict was therefore an international armed conflict (IAC), nor did it apply to its enemies international humanitarian law (IHL) applicable to IACs.
It is well known that according to the Tadić decision of the International Criminal Tribunal for the former Yugoslavia, overall control by Russia over their proxies in Donetsk and Luhansk was sufficient to activate IHL applicable to IACs. Today, after President Putin recognized the “republics” and waged a full-fledged war, allegedly to protect those “republics” and their inhabitants, it is appropriate to discuss what IHL both parties should have applied and whether those requirements were realistic. In this discussion, we will neglect that sometimes Russian soldiers themselves also intervened in this conflict. This post concentrates on the two main remaining differences between IACs and non-international armed conflicts (NIACs): prisoners of war (POWs) and belligerent occupation. How should and could the applicable IHL rules realistically have been respected by both sides?
Ukrainian Soldiers in the Power of the “Republics”
Under the Tadić theory, Ukrainian soldiers who fell into the power of the “republics” were legally in the power of Russia and therefore POWs. However, without Russia’s involvement (which IHL cannot realistically require because Russia would have by definition refused it), the “republics” which actually detained them would have been unable to comply with the letter of many provisions of Geneva Convention III (GC III). For instance: the POW camp could not have been commanded by a regular officer of the Russian armed forces (Art. 39 GC III); any trials against such POWs would have to be conducted before Russian military courts applying Russian military penal law and criminal procedure (Arts 82 and 84 of GC III); on many issues POWs had to be treated, under the principle of assimilation, as Russia’s “own” forces (Arts 20, 23(2), 25(1), 46(2), 52(2), and 53(1)-(2) GC III). On all those obligations, to keep them realistic, “Russia” has to be replaced by the “republics,” which, concerning the possibility to establish courts courts and to conduct fair trials, raises all the problems well known when armed groups establish courts.
Members of the Armed Forces of the “Republics” Fallen into the Power of Ukraine
From a policy perspective, it appears to be a fundamental requirement of fairness that members of the proxy-armed group who must comply under the Tadić theory with IHL applicable to IACs, including GC III, should also benefit from that law. This presupposes, however, that we twist the existing law in two respects. First, we must accept that in this case, unlike that of members of private military and security companies, an armed group may be considered to belong to a State even if that State denies that the group fights for it. Second, we must recognize, in conformity with the wording of GC III but contrary to past State practice, that Ukraine had to treat even its own nationals as POWs if they were members of an armed group fighting for Russia. The treatment of such POWs raises less problems. Nevertheless, many rules of GC III refer to the consent of, decisions of, agreements with, or transmission of information to the power on which the POW depends, which would be Russia in our case. In addition, the letter of GC III would require such POWs to be repatriated to Russia at the close of active hostilities, which does not seem appropriate for most of them.
The “Republics” as Russian Occupied Territory
Whether overall control made not only IHL of IACs applicable but also conduct of the “republics” attributable to Russia is controversial. The answer given by the International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro, paras 404-7, is no, while the majority considers that this must be the case because otherwise conduct in an IAC would sometimes not be attributable to one party to the conflict. If the majority is correct, the effective control by the “republics” over parts of Ukraine was attributable to Russia and made Russia and occupying power of those territories. The IHL of military occupation, laid down in particular in the 1907 Hague Regulations (HR) and Geneva Convention IV (GC IV) would apply and had to be respected—legally by Russia and therefore also by the “republics” attributable to it. Here too, however, apart from the unwillingness of the latter to do so and that by definition neither Russia nor the “republics” would accept such classification (as otherwise Russia would not have needed to act through proxies), the question arises whether the ”republics” could have respected that law (without asking Russia to establish control on the ground, which would have ended the proxy warfare).
As the “republics” claimed to be States, they should have had the possibility to respect the numerous positive obligations of an occupying power, including to maintain public order and civil life (Art. 43 HR). Local inhabitants were “protected civilians” as they were legally (through its proxies) in the power of Russia, of which they were not nationals (Art. 4 GC IV) and any attribution of Russian nationality during the occupation would have been without effect for IHL (Art. 47 GC IV).
Conversely, one must also admit that as representatives of the occupying power, the “republics” could intern civilians for imperative security reasons and adopt the related procedures (Art. 78 GC IV). In the Donbas it was easier to respect the pre-existing law and tribunals, as they were mainly those of the Ukrainian government and parliament before the Maidan revolution. One may also consider that the “republics” (representing Russia) could introduce new legislation for security and a limited number of other purposes admitted by the law of occupation (Arts 43 HR and 64 GC IV).
Contrary to the text of GC IV which requires that such laws are applied by properly constituted military courts of the occupying power (Art. 66 GC IV), we must accept that the “republics” could bring such cases before their own courts (as they represent the occupying power). As long as they were under overall control of Russia, they could, however, not introduce new legislation beyond the limited purposes admissible under IHL nor change the local institutions. The commander-in-chief who could order contributions (Art. 51(1) HR) and the commander in the locality on whose behalf requisitions could have been ordered (Art. 52(2) HR) had to be understood as those of the “republics.”
A General Appraisal of the Realism of the Tadić Approach
The Tadić approach corresponds to legal logic. When applied in practice to a typical situation like that which prevailed in Eastern Ukraine until recently, it raises, however, legal and practical problems. The fact that the proxy and the controlling State—by definition—deny control is only part of the problem. Even a proxy willing to apply IHL will confront serious difficulties. This post has shown that through a sometimes very innovative interpretation, it is possible to respect most of IHL’s requirements (although not its letter).
Nevertheless, one may wonder whether the applicability of IHL applicable to IACs is unrealistic and, therefore, erroneous in such a situation. Is this a further example of a theory developed by an international criminal tribunal, after the facts, on IHL issues to facilitate conviction of an accused? Can such standards be applied during the conflict, as they must if they belong to IHL?
If this is not the case, they should be abandoned. Indeed, unrealistic rules do not protect anyone; they undermine the credibility and, therefore, the protective force of the entire IHL regime with the fighting parties. Whether Conventions III and IV should be applied, or whether the Tadić theory should be abandoned in an essential part—leaving IHL applicable to NIACs to govern the rights and obligations of (members of) the proxy—remains an open question. The answer cannot be that proxies should not exist and be discouraged. Indeed, the very essence of IHL is that it applies to a situation, namely armed conflict, which should not exist and should be discouraged.
Marco Sassòli is Professor of International Law at the University of Geneva, Switzerland. This post is based on the results of the research made by Ms. Eugénie Duss in view of her PhD on IHL applicable in proxy warfare, although the opinions expressed are exclusively mine.
Photo credit: Taras Gren
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