Legal Status of Ukraine’s Resistance Forces

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| Feb 28, 2022

Ukraine Resistance Forces

In the lead up to Russia’s invasion, Ukraine prepared to defend its territory by, among other things, training its citizens to serve as a “resistance in waiting.” The extent to which these resistance forces have engaged Russian invaders to date remains unclear. What is clear is that Ukrainians are determined to mount a tenacious defense.

On 26 February, Ukrainian President Volodymyr Zelensky invited “[a]ll friends of Ukraine who want to join the defense” to help.  “We will give you weapons,” he said.  In recent days, Ukrainian authorities have distributed nearly 18,000 rifles to volunteers in Kyiv.  Ukraine’s Ministry of Defense has even urged residents of Kyiv to “prepare Molotov cocktails” to deter the advance of Russian forces in the city.

Reports have described Ukraine’s resistance forces as comprised of civilian volunteers. This characterization raises important legal questions. What treatment obligations do Russian forces owe to Ukraine’s resistance forces under the law of armed conflict? Can Ukrainian resistance forces be lawfully targeted by the Russian military? What status should resistance members be afforded upon capture? This post addresses some general issues related to the legal status of Ukraine’s resistance forces. Other posts in this symposium will address many of these questions more specifically.

Detention

Both Russia and Ukraine are Parties to the 1949 Geneva Conventions and the 1977 Additional Protocols. Accordingly, they are bound by those instruments, as well as the customary international law of armed conflict. The Third Geneva Convention (GCIII) and Additional Protocol I (API) are particularly relevant to the issue of detention given the international character of the conflict.

As a general matter, three broad groups of defenders are likely to be engaged in Ukraine’s defense: (1) members of Ukraine’s armed forces, (2) members of Ukraine’s resistance forces, who are the main subject of this post, and (3) civilian participants in a levée en masse.  Given recent media reports and striking scenes of ordinary citizens waiting in line to receive rifles, we first examine the possibility that these volunteers constitute a levée en masse, or mass uprising, entitled to specific protections under the law of armed conflict.

Levée en Masse

Under Article 4(A)(6) of GCIII, “[i]nhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading force” are entitled to be treated as prisoners of war upon capture. The law of armed conflict has long acknowledged the potential for this phenomenon and afforded participants in them prisoner of war status upon capture, provided certain criteria are met. In general, a levée en masse must be spontaneous; it must occur in non-occupied territory; it must involve the inhabitants of the territory; and participants must carry arms openly and follow the law of war.

The possibility that the conditions for a levée en masse could be satisfied in Ukraine will be fact dependent. We only briefly discuss the potential levée en masse in Ukraine here as it will be the subject of a more detailed Articles of War post in the following days.

First, to constitute a levée en masse, the uprising must occur within a limited temporal window—that is, the period of the actual invasion (Pictet, p. 68).  A levée en masse is intended to be a stop-gap measure made necessary to forestall an impending occupation. Accordingly, common requirements of lawful combatancy—such as wear of a distinctive sign or organization under a responsible command—can be forgone. On the other hand, participants in a levée en masse must carry arms openly and respect the laws and customs of war. Still, the levée en masse is a generally disfavored category under the law of armed conflict because its participants need not exhibit all the usual characteristics of other lawful combatants.

A levée en masse must also be spontaneous. The ICRC’s 2020 Commentary on the Third Geneva Convention asserts that “spontaneity does not mean that the invasion or advance of the enemy has to be a surprise” (para. 1066). However, participants in the levée en masse must not have had time to form themselves into regular armed units. Reports suggesting that many of Ukraine’s newly armed inhabitants “are fighting under the loose command of the military in an organization called the Territorial Defense Forces” calls into question the spontaneity of at least some of these efforts. Still, spontaneity must be judged on the facts of each case. Note also that non-inhabitants who travel to Ukraine to resist Russian forces are not eligible to form part of a levée en masse as they are not inhabitants.

Even if not recognized as participants in a levée en masse, many of Ukraine’s recently armed inhabitants nevertheless could be entitled to prisoner of war protection as members of Ukraine’s armed forces or as members of other militias or volunteer corps belonging to Ukraine. These possibilities are examined in turn below.

Armed Forces

Under Article 4(A)(1) of GCIII, combatants, first and foremost, are entitled to prisoner of war status upon capture. Combatants include members of a State’s armed forces, “as well as members of militias or volunteer corps forming part of such armed forces.” In Yoram Dinstein’s formulation, combatants include “members of the armed forces of a Belligerent Party—whether these forces are regular or irregular, and irrespective of belonging to the standing army or to reserve units—including para-military militias incorporated de facto in the armed forces” (Dinstein, p. 41).

Whether mere membership in the armed forces is sufficient to establish entitlement to prisoner of war status is the subject of some debate.  Some sources insist that other conditions, particularly the four requirements enumerated in Article 1 of the 1907 Hague Regulations and rearticulated in Article 4(A)(2) of GCIII, must also be met before members of a State’s armed forces and incorporated groups may be afforded prisoner of war status.  The four requirements are that the group

(a) is commanded by a person responsible for subordinates;

(b) has a fixed distinctive sign recognizable at a distance;

(c) carries arms openly; and

(d) conducts its operations in accordance with the laws and customs of war.

Others, including Sean Watts, suggest membership alone in a State’s armed forces, or a militia or volunteer corps formally incorporated into the State’s armed forces, is sufficient to qualify an individual for prisoner of war status under Article 4(A)(1). For various reasons, including those expressed by Prof. Watts, this appears to be the more reasonable approach.

Accordingly, members of Ukraine’s armed forces and incorporated groups—with the notable exception of medical and religious personnel—qualify as combatants entitled to prisoner of status.  The status of the remainder of Ukraine’s resistance forces will hinge on the four factors enumerated in Article 4(A)(2) of GCIII and as subsequently modified by Article 44(3) of API.

Other Resistance Forces

If an individual engaged in the armed defense of Ukraine has not been assimilated into Ukraine’s armed forces through membership in its organized armed forces or in a militia or volunteer corps incorporated into the armed forces, the individual may still gain prisoner of war status under the conditions outlined in Article 4(A)(2) of GCIII.  As noted above, members of these “other militias” and “other volunteer corps,” including those belonging to “organized resistance movements,” must meet the requirements of responsible command authority, use of a fixed distinctive sign, carrying arms openly, and compliance with the laws and customs of war.  Importantly, these groups must also belong to the State.  Members of non-State armed groups are not entitled to combatant status in this context, nor may they be the prisoners of war under Article 4(A)(2).

Article 44(3) of API is also applicable to the conflict given both Russia’s and Ukraine’s ratification of API.  Article 44(3) modified the fixed distinctive sign and carrying arms openly requirements of GCIII in recognition that “there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself.”  Under API, therefore, members of an organized resistance movement retain their status as combatants when they carry arms openly “during each military engagement” and “during such time as [they are] visible to the adversary while [they are] engaged in a military deployment preceding the launching of an attack.”

In light of these requirements, would individuals forming part of Ukraine’s resistance forces be entitled to prisoner of war protection as members of an organized resistance movement?  Press reports indicate an astonishing array of Ukrainians have taken up arms to defend their country. One article in the New York Times described “[v]ans and cars with armed men without uniforms” traveling the streets, and checkpoints directed by “men and women in civilian clothes, carrying rifles.” These “newly armed civilians and members of various paramilitary groups” are apparently fighting “under the loose command of the military” as part of Ukraine’s Territorial Defense Forces. Moreover, while many have been operating without uniforms, members of the Territorial Defense Forces conspicuously wear yellow arm bands identifying themselves as members of the group.

If the Territorial Defense Forces cannot be considered incorporated into Ukraine’s armed forces, determining the status of these defenders if captured will depend on the criteria outlined in Article 4(A)(2) of GCIII and Article 44(3) of API.  The command structure of these groups and their current use of a yellow arm band to signify their affiliation will be relevant to determining their status.

Targeting

Determining whether—and when—members of Ukraine’s resistance forces can be lawfully targeted will depend on much the same analysis as outlined above for the detention context.  If resistance members constitute a levée in masse, part of Ukraine’s armed forces, or resistance groups that belong to Ukraine, they can be lawfully targeted based on their status as combatants.  If, on the other hand, they are considered civilians, they may only be made the object of attack if and while they take a direct part in hostilities.

Combatant Status

Under the law of armed conflict, combatants can be targeted at any time, provided they are not hors de combat. Gary Solis asserts, “Combatants may be targeted wherever found, armed or unarmed, awake or asleep, on a front line or a mile or a hundred miles behind the lines.” Under API, Article 41(2), a person is hors de combat when the individual expresses an intention to surrender or when rendered unconscious or otherwise incapacitated by wounds or sickness. Members of Ukraine’s resistance forces who qualify as combatants, therefore, may be targeted consistent with these rules.

Direct Participation in Hostilities

Article 51 of AP I provides that civilians enjoy general protection against dangers arising from military operations. In particular, civilians may not be made the object of attack. Article 51(3), however, stipulates that civilians are only afforded these protections “unless and for such time as they take a direct part in hostilities.” In other words, civilians who directly participate in hostilities can be lawfully targeted while they do so.

The ICRC’s 1987 Commentary on the Additional Protocols has interpreted “direct” participation to mean “acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.” The Commentary further maintains that “[i]t is only during such participation that a civilian loses his immunity and becomes a legitimate target. Once he ceases to participate, the civilian regains his right to the protection under [Section 1 of AP I] …, and he may no longer be attacked.”[1]

The U.S. Department of Defense Law of War Manual outlines some considerations that may be relevant to determining whether an act by a civilian constitutes taking a direct part in hostilities (see para. 5.8.3). It also provides examples of acts that may (see para. 5.8.3.1) and may not (see para. 5.8.3.2) be considered taking a direct part in hostilities.

Examples in the Manual of taking a direct part in hostilities include:

    • Taking up or bearing arms against the opposing party, or otherwise personally trying to kill, injure, or capture personnel or damage material belonging to the opposing party;
    • Preparing for combat and returning from combat;
    • Planning, authorizing, or implementing combat operations against the opposing party, even if the person does not personally use weapons or otherwise employ destructive force in connection with the operation;
    • Providing or relaying information of immediate use in combat operations;
    • Supplying weapons and ammunition, whether to conventional armed forces or non-state armed groups, or assembling weapons (such as improvised explosive devices) in close geographic or temporal proximity to their use.

Examples in the Manual of acts not considered taking a direct part in hostilities include:

    • Mere sympathy or moral support for a party’s cause;
    • General contributions made by citizens to their State’s war effort (g., buying war bonds or paying taxes to the government that will ultimately be used to fund the armed forces);
    • Police services (g., police officers who maintain public order against common criminal during armed conflict);
    • Independent journalism or public advocacy (g., opinion journalists who write columns supporting or criticizing a State’s war effort);
    • Working in a munitions factory or other factory that is not in geographic or temporal proximity to military operations but that is supplying weapons, materiel, and other goods useful to the armed forces of a State;
    • Providing medical care or impartial humanitarian assistance

Yoram Dinstein summarizes the difference between civilians who directly participate in hostilities and combatants by observing that these particular civilians “are not entitled to act the way they do” (Dinstein, p. 42). “But,” Dinstein continues, “they do not differ from combatants in that they become lawful targets for attack” (Dinstein, p. 42).  As scenarios arise, determining whether individuals have engaged in activity making them liable to attack must be carefully evaluated.

Organized Armed Groups

Lastly, it should be noted that the concept of organized armed groups, groups not qualifying as combatants that may nonetheless be targeted on the basis of their status, may be limited to situations of non-international armed conflict and, therefore, may not be of immediate relevance in the current Russia-Ukraine context. The U.S. Law of War Manual appears to leave room in international armed conflict to target members of organized armed groups not qualifying as combatants—so-called “unprivileged belligerents”—on the basis of status (paras. 4.3.4; 5.7.3 et seq.). As API States Parties, however, Ukraine and Russia may not be able to adopt the U.S. view. Article 50(1) of API appears to offer only the statuses of combatant and civilian. The question concerning organized armed groups, however, is unsettled and the extent of agreement may rest in large part on how the conflict is characterized.

If the conflict is conceived as a single international armed conflict in which organized armed groups take part, their legal status for purposes of targeting is unclear. If the conflict were instead parsed into an armed conflict for purposes of hostilities between Ukrainian and Russian armed forces and a non-international armed conflict for purposes of hostilities between Russian armed forces and armed groups not affiliated with the State of Ukraine, the organized armed group classification would more clearly be available. In any event, the conflict may provoke clarifications on this question.

Conclusion

Uncertainty surrounds the future of Ukraine, and the fallout of this week’s events will be enormous and lasting, whatever the outcome.  The international legal community should diligently monitor and analyze the legal status of those defending Ukraine every step of the way.  Whether characterized as participants in a levée en masse, members of the armed forces, or individuals forming part of other militia or volunteer corps of the State, those defending Ukraine must be properly respected throughout the conflict and afforded all the protections provided by the law of armed conflict.

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LTC Ronald Alcala is an Associate Professor in the Department of Law at the United States Military Academy and Managing Editor of Articles of War.

MAJ 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.

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Footnotes

[1] Note that the United States, which is not a party to AP I, does not fully subscribe to this interpretation.  The U.S. Department of Defense Law of War Manual states, “The law of war, as applied by the United States, gives no ‘revolving door’ protection; that is, the off-and-on protection in a case where a civilian repeatedly forfeits and regains his or her protection from being made the object of attack depending on whether or not the person is taking a direct part in hostilities at that exact time” (para. 5.8.4.2).