Levée en Masse in Ukraine: Applications, Implications, and Open Questions

On February 24, 2022, facing an existential threat, President Volodymyr Zelensky signed a decree ordering a general mobilization to defend Ukraine against a Russian invasion. Posted on the presidential website, the decree intended “to ensure the defence of the state” putting the entire country on a war footing. The Ukrainian government also announced that men between 18 and 60 years old must remain in Ukraine to help with its defense.

Although it is far too early to adequately assess how effective the Ukrainian population will be against the militarily superior Russian forces, initial reports indicate Ukrainians are heeding the call to arms. The commitment of the civilian population to fight against the Russians is inspiring. Denys Semyroh-Orlyk, a 46-year-old Ukrainian architect, stated, “[w]e will never surrender. We are using every opportunity to train. So, I think Putin should be afraid of us.” The Ukrainian government is calling upon civilians to find weapons and make Molotov cocktails to fight the Russian invaders. Ukraine’s former president, Petro Poroshenko, has been seen patrolling the streets of Kyiv brandishing an AK-47 assault rifle.

The general mobilization of the civilian population in Ukraine to fight against Russian invaders implicates a law of armed conflict (LOAC) category of fighters seemingly from a by-gone era, reflected in the French term, levée en masse. A levée en masse is a unique and limited battlefield categorization available only during an international armed conflict. Its chief legal significance is to give prisoner of war status and combatant immunity to fighters. This post will explore the LOAC concept of levée en masse in the context of the ongoing conflict in Ukraine. It will briefly discuss the characteristics, limitations, and several open questions about its use under the LOAC.

Characteristics of a Levée en Masse

The LOAC recognizes that a levée en masse occurs when inhabitants of a non-occupied territory spontaneously take up arms to resist an invading force without an opportunity to form into a regular armed unit. Reflecting patriotic zeal, a levée en masse institutionalizes total warfare in so far as otherwise protected civilians lawfully participate in combat during an early and brief period of an international armed conflict, i.e., before the occupation of the invaded territory. The notion of a levée en masse is deeply rooted in history. Its origins can be traced to the French Revolution, which marked a shift from dynastic wars deploying professional armies to conflicts involving the mass participation of citizens defending their homelands. The Lieber Code, the Brussels Declaration, the Hague Regulations, and the Third Geneva Convention (GC III) all expressly encapsulate the special status given to levée en masse participants. In addition to these treaties, the Department of Defense Law of War Manual adopts this special status of combatants.

Article 4A(6) of GC III explicitly entitles inhabitants participating in a levée en masse, upon capture, to prisoner-of-war status. Accordingly, qualification as a prisoner of war by participation in a levée en masse means an individual gains combatant status and, as such, is not considered either a civilian or unprivileged belligerent. Inhabitants participating in a levée en masse are authorized under the LOAC to kill or wound without penalty, provided the privilege is not abused by unlawful battlefield conduct. Similarly, such participants are subject to being targeted as combatants.

There are several limitations on this battlefield status. The first limitation is temporal. Namely, the status only exists for people who took up arms during the invasion phase of a conflict. As noted in the International Committee of the Red Cross (ICRC) 2020 Commentary to Geneva Convention III,

[i]f the resistance continues after this window when the inhabitants have had time to organize into regular armed units, Article 4A(6) loses its relevance. The inhabitants must either be replaced by the regular armed forces of their State, formally integrate into them, or form groups which meet the conditions of Article 4A(2).

Second, a levée en masse is a spontaneous, unorganized movement acting under emergency conditions. As such, prisoner of war qualification standards from GC III, Art. 4(A)(2) and Hague Regulations, Art.1 are relaxed. Namely, participants are neither required to be commanded by a person responsible for their subordinates nor wear a fixed distinctive sign recognizable at a distance. This is understandable, considering the inhabitants of the invaded territory may not have sufficient time to organize into units and adopt distinctive signs. Thus, the requirement to carry arms openly takes on special significance and has more precise implications under the LOAC. It is the only distinguishing characteristic between a protected civilian and a levée en mass combatant.

Putting a finer point on it, “[r]ecognizing both the realities of a levée en masse and the criticality of protecting civilians, the law of armed conflict places singular emphasis on the essential need for those choosing to participate in a spontaneous uprising to ‘carry arms visibly.’” Finally, as noted by Professor Yoram Dinstein, the trajectory of events after the levée en masse will proceed in one of three ways. First, the invaded territory is occupied despite the levée en masse. Second, the invading army is defeated and repulsed. Finally, the situation stabilizes, and there is sufficient time to meet all four combatant qualification standards from GC III, Art. 4(A)(2) and Hague Regulations, Art. 1.

Application of Levée en Masse to the Ukraine-Russia International Armed Conflict

Some respected publicists have contended that the battlefield category of a levée en masse is no longer of any great practical importance in the LOAC. Given the recent developments in Ukraine, those assessments are premature. While the existence of an international armed conflict between Ukraine and Russia may seem self-apparent, it is worth highlighting that conflicts of this magnitude are rare and contribute to the limited circumstances where civilians can be characterized as participants in a levée en masse on such a large scale.

Yet even in the context of an international armed conflict, the extent of the number of civilians taking up arms demonstrates the importance and relevance of this special status of combatants. Inhabitants of the unoccupied areas of Ukraine are spontaneously taking up arms to resist invading Russian forces. Carrying their arms openly, and clearly not part of the regular armed forces, these “ordinary people” are the foundation for a “ballooning popular resistance” to Russia’s invasion. Accordingly, with the continuous movement of Russian troops into unoccupied territory, inhabitants who resist this invasion may still meet the criteria for levée en masse and receive the concomitant rights and obligations.

Also, the ICRC Commentaries to Geneva Convention III indicate that invasion need not be a surprise. Consequently, the call to arms by President Zelensky does not in and of itself prevent the application of a levée en masse. Thus, it is clearly too early in the conflict to discount the possibility of this unique and limited combatant status.

However, given the infrequency of a levée en masse and dearth of State practice, several critical unanswered questions remain. First, who can participate in a levée en masse? GC III, Art. 4A(6) refers explicitly to “inhabitants of unoccupied territory.” Regrettably, the 1960 and 2020 Commentaries to Geneva Convention III are not particularly helpful in determining who precisely is an “inhabitant.” Inhabitants are generally understood to be persons that occupy a place regularly or routinely. This raises a question about the status of foreigners participating in defense of Ukraine. Do these individuals qualify for participation in a levée en masse?

A second unanswered question is what does “carrying arms openly” mean especially in the age of cyber? A cyber levée en masse participant will use their laptop or other cyber infrastructure to participate in hostilities during the invasion. In fact, there are a number of amateur (as well as professional) hackers currently conducting cyber hostilities against Russian government websites. The experts who wrote the Tallinn Manual 2.0 on International Law applicable to Cyber Operations recognized the possibility of a cyber levée en masse when drafting that seminal document.  However, use of such devices does not distinguish oneself as a fighter in any meaningful way.

When comparing the historical narrative of a levée en masse – large numbers of armed citizens spontaneously coalescing to repel invaders – to the cyber version—technically skilled citizens discreetly using their computers from an undisclosed location to attack invaders – the stark differences highlight the flaws in trying to apply the traditional concept in the cyber domain.

As demonstrated in Ukraine, cyber capabilities and personnel are increasingly vital participants in modern and future armed conflicts making the issue of cyber levée en masse participation more than an academic exercise.

Third, what does “spontaneously” mean in the context of Article 4A(6)? The ICRC 2020 Commentary to Geneva Convention III provides some guidance but does not fully answer the question. In describing persons who are responding spontaneously to an approaching and invading enemy, the 2020 Commentary states, in part “those who have not had time to form themselves into regular armed units and who have not been  organized in advance by organs of the State, are covered.” Moreover, warning the population of the invasion does not change or alter the spontaneity of the response. Of course, left unanswered is how much time is necessary to form into regular armed units? That is, did they inhabitants of unoccupied territory have sufficient opportunity to organize themselves in a manner to meet the qualifications of GC III Article 4A(2)?

Implications for Future Armed Conflicts

Answering the above questions, along with many others (including those related to occupation as a triggering event for the end of a levée en masse), will have implications for understanding how this battlefield status will apply in future armed conflicts. But more importantly, considering a paradigmatic shift to a geopolitical environment where peer-to-peer and peer-to-near peer armed conflicts are more likely, the very existence of a wide scale Ukrainian levée en masse will have an immense impact on the regulation of warfare going forward.

For example, the levée en masse in Ukraine appears to be relatively effective in stopping, slowing, or otherwise frustrating the Russian advance. Even though vastly outgunned, and with many civilians  having no previous military experience, Ukraine’s armed forces and the large number of civilian participants are mounting a spirited defense. Yet, what becomes apparent is that a levée en masse – despite its effectiveness – intuitively increases the risk to the civilian population.

The only way participants in a levée en masse distinguish themselves is by carrying their arms visibly. Unquestionably, the LOAC places a particular emphasis on meeting this distinction requirement to qualify for lawful combatant/POW status under a levée en masse. And, it is most assuredly in the self-interest of the participants to have this status, particularly upon capture. However, the dividing line between combatant and protected civilian is thin with respect to a levée en masse, especially in population centers, like Kyiv, which are chaotic and ambiguous battlespaces. Logically, this will lead to more death and injuries to the civilian population. Having said the above, it is worth highlighting that Russia appears to be deliberately targeting civilians and civilian objects in the conflict notwithstanding a levée en masse.

More broadly, the Ukrainian levée en masse indicates that this category of combatant could once again become widely used. The more effective and celebrated a levée en masse in Ukraine, the more likely this trend may become a reality. For most of the last decade, discussions of future warfare and battlefields were inextricably linked to references to cutting-edge technologies and weaponry such as cyber capabilities, autonomous weapons, hypersonic missiles, laser weapons systems, etc. It is truly remarkable that a method of warfare rooted in the late 18^th Century could be resurrected for future conflicts. Of course, it is important to emphasize and appreciate a levée en masse is a very limited status and only applies during the invasion period ending upon occupation. As such, its utility could be very limited depending on the circumstances.

Conclusion

Although the effectiveness of the Ukrainian levée en masse is unknown as of this writing, it is apparent that the use of this seemingly anachronistic combatant category indicates its ongoing legal relevance. Further, the general mobilization of the civilian population in Ukraine to fight against the Russian armed forces highlights the need for further exploring this often-overlooked LOAC category of combatant/POW. Unfortunately, this may become extremely important as the trend towards the total warfare originally envisioned by the levée en masse battlefield status characterization becomes a reality.

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Brigadier General (ret.) David A. Wallace previously served as the Professor and Head, Department of Law, United States Military Academy, West Point, New York, and has been designated a Professor Emeritus.

Brigadier General Shane Reeves is the 15th Dean of the Academic Board of the United States Military Academy, West Point.

The views expressed in this work are those of the authors and do not necessarily reflect the official policy or position of the United States Naval Academy, United States Military Academy, the Department of the Navy, the Department of the Army, or the Department of Defense.

Photo credit: Mstyslav Chernov via Wikimedia Commons