Ukraine Symposium – Defiance of Russia’s Demand to Surrender and Combatant Status

Before its latest shelling of Mariupol, Russia demanded that fighters defending the city surrender, lest they face a “military tribunal.” More recently, there were rumblings that Russia was preparing to send law enforcement officers, prosecutors, and court officials to Ukraine. While it is unclear where in Ukraine these officials would go, it seems that any prosecution of the Mariupol fighters would stem from their mere refusal to surrender.

If carried out, Russia’s threat would unlawfully deny to Ukrainian combatants two key benefits they enjoy under the law of armed conflict—combatant immunity and prisoner of war (POW) status. Moreover, Russia’s actions would constitute a war crime and grave breach of the Third Geneva Convention Relative to the Treatment of Prisoners of War (GC III) because it would “willfully depriv[e] a prisoner of war of the rights of fair and regular trial prescribed in this Convention.” (GC III, Article 130).

In this post, we examine the Russian threat in the context of combatant status. We demonstrate that compliance with or defiance of Russia’s surrender demand is an irrelevant consideration when determining whether an individual is entitled to that status and its accompanying privileges. Additionally, we explain why, under Article 45(1) of Additional Protocol I (to which Russia and Ukraine are Parties), Russia is required to presume POW status for “any person who takes part in hostilities” that “claims the status of prisoner of war, or … appears to be entitled to such status,” or whom Ukraine believes is entitled to POW status and notifies Russia of this belief, up and until that person’s status is otherwise “determined by a competent tribunal.”

Lawful Combatants, Combatant Immunity, and Prisoner of War Status

The categories of individuals who qualify as combatants are set forth in Article 4A of GC III. Although this provision focuses on POW status, by extension it more broadly encompasses combatant status. Professor Sean Watts has argued for disaggregation of the concepts of POW and combatant. He maintains, “the conceptual coupling of combatant status with POW status seems to have necessarily narrowed the operation of the core function of GC III, namely, its protective internment regime.” (para. 81, p. 909). However, by one influential account of GC III, “combatant status is not explicitly affirmed, but it is implicitly included in the recognition of POW status (International Committee for the Red Cross’s (ICRC) 1987 Commentary to Additional Protocol I, para. 1677).

Three categories are of particular importance vis-à-vis the situation in Mariupol (for the status of resistance forces, see the previous posts by Ronald Alcala and Steve Szymanski, Geoff Corn, and Gary Corn):

(1) members of the regular armed forces, except some medical and religious personnel (GC III, art. 4A(1));

(2) under certain conditions, members of a militia or volunteer corps that are not part of the regular armed forces, sometimes called “irregular militia” (art. 4A(2)); and

(3) members of a levée en masse, which consists of “inhabitants of an area who participate in a kind of popular uprising to defend against foreign invaders” (art. 4A(6); see also Department of Defense Law of War Manual (DoD LoW Manual) § 4.3.3).

Members of the regular Ukrainian armed forces qualify as combatants under Article 4A(1), but arguably only if captured while in uniform. Under Article 4A(2), other Ukrainian fighters might qualify as “irregular militia” entitled to combatant status, so long as they satisfy four cumulative conditions:

(a) that of being commanded by a person responsible for his/her subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

Article 44 of Additional Protocol I explicitly relaxed these requirements by recognizing a temporal component to the distinction requirement, though this was “aimed at combatants using methods of guerrilla warfare” (1987 ICRC Commentary, para. 1684).

And some of Mariupol’s inhabitants may have qualified as members of a levée en masse pursuant to Article 4A(6). As noted by Brigadier Generals Wallace and Reeves, the term refers to “a spontaneous, unorganized movement acting under emergency conditions.” This category would almost certainly have included some of the inhabitants of Mariupol during the initial Russian onslaught. However, after weeks of fighting, they have likely integrated into the regular armed forces or formed irregular militia, as they are required to do if they wish to continue to enjoy combatant status (2020 ICRC Commentary on GC III, para. 1064). Even if they have not, they will still enjoy combatant immunity for lawful conduct of hostilities while being members of the levée en masse.

Unlawful combatants who engage in hostilities without qualifying as combatants enjoy neither combatant immunity nor POW status. We will not speculate on whether there are individuals in Mariupol who are better categorized as unlawful combatants.

Lawful combatants enjoy combatant immunity, sometimes referred to as “combatant’s privilege.” A centuries-old customary element of international law found, for instance, in Hugo Grotius’ 1625 treatise, The Law of War and Peace, and Article 57 of the Lieber Code, combatant immunity is the notion that lawful combatants are privileged to kill and wound without criminal penalty, so long as their acts do not constitute war crimes. Captured soldiers who have engaged in combat by lawful means become prisoners of war upon capture and may not be criminally prosecuted for their actions (see, e.g., Article 56 of the Lieber Code). Contemporarily, combatant immunity is reflected in Article 43(2) of Additional Protocol I, providing that (lawful) combatants have a “right to participate directly in hostilities” (see also DoD Law of War Manual, § 4.4.1).

Constraints on Denying Combatant Status

It is clear that a State may not impose conditions or criteria that are not recognized in international law for combatant status. Additional Protocol I, Article 45(1) provides that a State must presume POW status for anyone who claims such status or “appears to be entitled to such status,” among other categories. Article 45(1) continues that in cases of doubt, the person shall enjoy POW status “until such time as his status has been determined by a competent tribunal.”

Case law from around the time GC III was adopted addressing whether additional conditions may be imposed in determining POW (and by extension, combatant) status is scant. However, in 1949, a British Military Court rejected the notion in the case In re von Lewinski (von Manstein). The court considered whether the defendant, a German commander, could deny POW status to inhabitants of occupied Russia who defied German demands. The court held the Germans lacked this authority and reasoned by example that “no notice stating that soldiers who do not report at a certain time or within a certain time will be treated [without POW status] can have any validity.” The facts differ from the Russian demand in Ukraine, but the court’s finding that a party may not add conditions for POW status is directly applicable.

Opposition to additional criteria for combatant status was also apparent during the drafting of Article 44 of Additional Protocol I. A dispute arose during the diplomatic conference whether to relax the four combatant status criteria for irregular forces (1987 ICRC Commentary, para. 1684). Specifically, it concerned the obligations to wear a “fixed distinctive sign recognizable at a distance” (uniform in most cases) and to carry weapons openly. Entitlement to POW status was one of the issues.

The drafters relaxed the conditions for POW status, a position that the United States and others opposed (Message from the President, § IX). For our purposes, though, the relaxation signals opposition to making the criteria for combatant status more demanding. On the contrary, the trend is in the other direction. Indeed, should a fighter fail to satisfy the more inclusive criteria, Article 44(4) provides that they should “nevertheless be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol.”

Finally, if there is doubt whether a captured detainee is entitled to POW status, Article 5 of the Third Geneva Convention requires the Parties to convene a hearing before a “competent tribunal” to make a status determination. In such cases, the individual concerned must be afforded Third Geneva Convention protections until the tribunal determines otherwise.

Article 45(1) of Additional Protocol I lists individuals to whom the presumption must apply—even in cases of extreme doubt—pending the tribunal’s proceeding. This includes captured individuals who merely claim POW status. According to the ICRC Commentary, this section should be read such that the “burden of proof falls upon the captor” that someone is not entitled to POW status (¶ 1730).

Article 5 provides “little guidance” about what is meant by a “competent tribunal,” but such tribunals must make determinations “on a case-by-case basis so as to prevent, for example, the blanket exclusion of units or groups” (2020 ICRC Commentary, paras. 1123, 1127). U.S. Army regulations call for a tribunal of three officers who hear evidence in the detainee’s presence. The panel must find by a preponderance of the evidence that the detainees are not entitled to POW status before denying them the benefits of that status (and, more generally, combatant status). But there is no basis in law or practice for considering substantive criteria that are not recognized in international law—such as a demand to surrender—when making the determination.

Conclusion

 It remains to be seen how Russia will treat fighters captured in the battle for Mariupol and elsewhere. What is clear is that it may not impose supplemental criteria for combatant status beyond those already set forth in the law of armed conflict.

Additionally, it is unlawful for Russia to hold military tribunals for captured fighters who fail to surrender. Most (if not all) of the inhabitants resisting Russian aggression are likely lawful combatants who are entitled to combatant immunity and POW status. Should any doubt as to their status arise, they are entitled to the presumption of POW status until a competent Article 5 tribunal determines otherwise.

While calls for Russia to fully comply with its obligations under GCIII and Additional Protocol I increasingly seem to be made in vain, the international community should continue to insist on respect for fundamental law of armed conflict principles and condemn Russia whenever that respect is absent.

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Major Chris Koschnitzky is a military professor at the Stockton Center for International Law at the U.S. Naval War College, where he co-teaches a course on the Law of Armed Conflict.

Major Steve Szymanski serves as an Assistant Professor and National Security Law Course Director in the Department of Law at the United States Military Academy, West Point.

Photo credit: Ministry of Defence of Ukraine