Prisoners of War in Occupied Territory

It seems increasingly likely that the international armed conflict raging in Ukraine will devolve into a partial Russian occupation of large portions of Ukrainian territory. President Putin may very well declare annexation—or reincorporation—of that territory into Russia. But such a move would clearly violate international law and be void ab initio. It seems equally likely that the occupation will be a bloody endeavor as the result of Ukrainian resistance efforts.

This likely evolution of events, coupled with the influx of weapons, ammunition, and volunteer fighters into Ukraine to resist Russian aggression will almost certainly implicate complex questions related to the rights and status of resistance fighters.

Historical Experience

Other authors have addressed the status of civilians who rise to resist an invasion as part of a levée en masse. However, at some point the spontaneity and lack of the opportunity to organize must dissipate. Such progression of an operational situation—initial spontaneous resistance morphing into resistance to occupation—was sadly all too common during the Second World War. Nearly all of continental Europe, huge swaths of China, and Southeast Asia were subjected to enemy invasion followed by occupation. In all of these areas resistance movements, often backed by the governments they continued to support or the United States and United Kingdom, conducted operations against the occupying forces.

When these resistance fighters fell into enemy hands, their fate was often sealed. If lucky, they would be imprisoned, but more often they faced summary execution. Axis forces considered such resistance as illegal, violating the obligation to submit to the authority of the occupying (or in many cases annexing) power.

These captives were not considered prisoners of war (POW) precisely because their resistance occurred in areas subject to occupation. The 1929 Geneva Convention Relative to the Treatment of Prisoners of War defined who qualified for such status by cross-referencing the definition of who was vested with the “privilege” to engage in hostilities included in The Regulations Annexed to the 1907 Hague Convention IV. According to Article 1 of these regulations, the privilege of belligerency (cross-referenced in the 1929 Prisoner of War Convention to indicate who qualified as prisoners of war) applied:

… not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.
In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination “army.”

The inclusion of militia and volunteer corps suggests resistance fighters, at least those who comply with those four conditions, should have qualified as POW when captured by occupying forces. But the 1929 Convention also cross-referenced Article 2 of the Annexed Regulations, which provided that:

The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.

The implication of restricting this extension of belligerent status to individuals who participate in a levée en masse, but only in areas not subject to enemy occupation, was that no such status applied to resistance forces during occupation.

Updating POW Status during Occupation

This inference, and the routine denial of prisoner of war status with the accordant immunity from criminal sanction for hostile actions committed in compliance with the laws and customs of war (for example, attacking occupying forces), led to a substantial addition to the Prisoner of War Convention when it was revised in the aftermath of the war. Instead of defining who qualifies as a POW by cross-referencing the definition of privileged belligerent in the 1907 Annexed Regulations, Article 4 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War provided an express definition of POW.

Article 4 included within the definition of POW the categories of privileged belligerents in the Annexed Regulations. However, it also included two significant expansions that were responsive to the experience of Second World War. First, Article 4.A.(2), like the Annexed Regulations, addressed “militia or volunteer corps” personnel belonging to a Party to the conflict. However, it specifically included within this category members of resistance movements, even those operating in occupied territory. Specifically, the provision includes within the POW definition:

Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his 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 (emphasis added).

This express inclusion of members of organized resistance groups operating in areas of enemy occupation will likely become significant in the weeks, months, and perhaps years of occupation that will likely grip part of Ukraine. Quite simply, the combination of patriotism, courage, and the influx of lethal aid flowing into Ukraine will almost certainly lead to a robust resistance effort. If the situation in Ukraine does evolve along the same trajectory as the occupations and resistance movements in the Second World War, the members of such groups will have an undeniable claim to POW status, with its accordant combatant immunity, so long as they comply with the four qualifying conditions of Article 4.A.(2).

Of course, this is not to say that compliance with these requirements is a given. Indeed, even at the time of the Convention’s revision there were critics who believed it was unrealistic to impose these requirements of resistance fighters. Nonetheless, failure to comply with them will deprive captives of a claim to POW status. Article 44(3) of the 1977 Additional Protocol I to the Geneva Conventions ostensibly mitigates the negative impact of such a failure to satisfy these requirements. This provision extends combatant and POW status to individuals when:

… owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

As a Party to Additional Protocol I, this provision would deny Russia the legitimate authority to deny POW status to resistance fighters based on an assertion they did not constantly distinguish themselves from the civilian population by carrying arms openly.

Prospects of Compliance

However, it should not be assumed that Russian captors will acknowledge POW status even when members of the resistance groups do comply with either Article 4.A.(2) or Article 44(3) of Additional Protocol I. Based on the apparent disregard for the most basic obligations of the law of armed conflict already being manifested by Russian indiscriminate attacks on civilian population centers, we should expect Russian forces will deny such status if and when they capture such fighters. This will most likely be based on an assertion that the captives failed to comply with the four qualifying requirements.

Regrettably, Russia may find support for a blanket denial of POW status by reference to the decision by President Bush, reflected in his February 7, 2002 Memorandum on the status and treatment of captured Taliban and al Qaeda personnel, concluding that no Taliban captive could qualify for POW because the Taliban, as an organization, failed to comply with these qualifications. Accordingly, the most compelling claim to POW status will require resistance forces to commit themselves to consistent compliance with the Article 4.A.(2) qualification requirements, or at the very least the requirements of Additional Protocol I. Doing so provides the best case for exposing the invalidity of any denial of POW status or punishment for participating in hostilities.

Article 4.A.(3) of the 1949 Convention added another significant expansion of POW qualification: “Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” This expansion was responsive to the experience of armed forces who continued to fight on behalf of exile governments, especially after the nation under whose flag they initially fought formally capitulated to the enemy.

The most obvious example were the Free French forces fighting under the command of General Charles De Gaulle. When captured, these forces could be denied POW status based on the fact that they were not fighting on behalf of a “Party to the conflict.” Other examples included armed forces who fought on behalf of governments in exile after collaboration governments took power in their national territory, such as Norwegian forces; or armed forces that fought on behalf of a government in exile after their home territory was annexed by the enemy, such as Czech forces.

The two latter examples may prove potentially significant in Ukraine. If Russia were to illegally annex further Ukrainian territory (as it already did in Crimea), or install a collaboration governing authority in Ukraine, members of the Ukrainian armed forces would retain their claim to POW status and combatant immunity if captured so long as the displaced Ukrainian government continued to assert lawful authority.

To date, it seems highly unlikely that government will go quietly into the night should Russia take such actions, and equally unlikely the Ukrainian armed forces would lay down their arms in response to an annexation or a demand from a collaboration government. Accordingly, even if Russia refused to recognize the legitimacy of the displaced Ukrainian government, these armed forces would qualify for POW status pursuant to this important addition to the Prisoner of War Convention.

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Geoffrey S. Corn is the Gary A. Kuiper Distinguished Professor of National Security Law at South Texas College of Law Houston, and a Senior Advisor to the Gemunder Center for Defense and Strategy.

Photo credit: Patrick Hendry