Ukraine Symposium – Putting “Overall Control” to the Test of the Third Geneva Convention

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| Jul 6, 2022

Overall Control Test

Detention is a common feature of both international and non-international armed conflicts (IAC and NIAC). Despite the increasing convergence in the regulation of the two types of conflicts as a matter of customary law, the rules on detention remain different. The classification of a situation as an IAC or NIAC therefore has important consequences in this respect.

This post will first inquire whether Ukraine and the self-proclaimed People’s Republics of Donetsk and Luhansk (D/LPR) are engaged in an IAC, on the basis of the overall control test. Second, it will reflect on the implications of this classification, focusing on some of the difficulties arising from the interpretation, and from the application by the D/LPR, of the Third Geneva Convention (GC III) regulating the treatment of prisoners of war (POWs). These reflections—which add to the ones by Marco Sassòli on this blog—far from being theoretical, have important practical repercussions, as demonstrated by the recent show trial at the end of which a DPR court sentenced three foreign members of the Ukrainian armed forces to the death penalty.

Classification of the Conflict

Ukraine has been engaged in several armed conflicts in the last few years. In addition to the IAC triggered by the Russian invasion of 24 February 2022, Russia has occupied Crimea since 2014. Since then, Ukraine has also faced an armed conflict in the Donbas region with the D/LPR, two pro-Russian separatist armed groups. Based on the organization of the armed groups and the intensity of the hostilities between the D/LPR and the Ukrainian governmental forces (Tadić, para. 70), the situation in Donbas since 2014 reaches the threshold for the existence of a NIAC and the application of Common Article 3 and the customary rules of international humanitarian law (IHL) of NIAC.

Russia has been involved in the conflict in Donbas since before the 2022 invasion. The exact contours of this involvement are crucial to understand for the classification of the conflict, which could be classified as a NIAC between Ukraine and the D/LPR alongside an IAC between Ukraine and Russia, or, alternatively, solely as an IAC due to the D/LPR acting on behalf of Russia. Since the Tadić case, the overall control test is widely used to classify a conflict which would be a prima facie NIAC as an IAC. Based on this test, a State has overall control over an armed group if, in addition to equipping and financing it, it also coordinates or helps in the general planning of its military activities, even if no specific orders or instructions relating to single military operations are issued (para. 137; also ICRC, para. 443). Against this background, it is important to recall that the classification of the conflict in Donbas as an IAC would depend exclusively on the D/LPR being Russian proxies and not on the illegal recognition of the two entities as independent by Russia.

A double classification of the Donbas conflict as an IAC between Russia and Ukraine and a NIAC between Ukraine and the D/LPR was initially suggested in the 2016 report on Preliminary Examination Activities of the Prosecutor of the International Criminal Court (ICC) (para. 169). The ICC Prosecutor, however, in 2019 considered that Russia “may have exercised overall control over armed groups in eastern Ukraine for some or all of the armed conflict,” which would thus be a single IAC (para. 277; see also 2020 report, para. 281). A recent 400-page legal opinion by Global Rights Compliance convincingly argues that while a NIAC existed between Ukraine and the D/LPR starting in April 2014, the conflict became an IAC already in July 2014 due to Russia’s overall control over the D/LPR armed groups (pp. 204-205).

More recently, a mission appointed by the Organization for Security and Co-operation in Europe (OSCE), in its report concerning the period since the February 2022 invasion, affirmed laconically that the D/LPR are under the overall control of Russia, without however explaining on the basis of which elements it reached this conclusion (pp. 5, 6, 7, 13, 18, and 51). Although of course the classification of the conflict depends on the facts on the ground and not on the characterization by one the parties, this finding was notably welcomed by Ukraine in its comments to the report (annex, p. 2, para. 2).

In this post, I do not definitively answer the question of whether the relationship between Russia and the D/LPR meets the conditions of the overall control test, or whether this test is indeed the correct one to classify the conflict. However, I would like to reflect on the potential implications of this test for the interpretation of GC III in this situation.

Members of the Ukrainian Armed Forces in the Hands of the D/LPR

The United Nations Human Rights Monitoring Mission in Ukraine reported that by mid-March 2022 the D/LPR were holding hundreds of Ukrainian POWs, although it was unable to verify the exact number (para. 50). In May, according to news sources, Ukrainian POWs in the hands of the D/LPR were several thousands.

Under IHL, the category of POWs only exists in IAC. Individuals belonging to one of the categories listed in Article 4 GC III are protected under this Convention when they fall in the power of the enemy, irrespective of their nationality (see also Articles 43and 44 Additional Protocol I). With its 143 articles, GC III provides an incredibly detailed regulation of the treatment of POWs, ranging from their conditions and places of internment to the food and clothing that need to be provided to them, to their labor, financial resources, relationships with the exterior, discipline, as well as the beginning and end of their captivity.

Authority to Intern POWs

Article 21 GC III contains a “strong permission” to intern POWs during IAC (Quentin, Chapter 6). No equivalent permission can be found in the law of NIAC, which does not authorize armed groups to deprive enemy fighters of liberty, but does impose obligations for the treatment of those who fall in their hands (Common Article 3; Articles 4 and 5 Additional Protocol II). States have been careful not to grant any rights or privileges to armed groups under IHL.

Anne Quentin suggested that, following the logic of the overall control test, the permission to intern POWs would be transferred to the proxy group, although the State whose armed forces members are being held might not recognize the authority of the armed group to intern their soldiers. Indeed, whether armed groups act on behalf of a foreign State or not, States most likely continue considering them as criminals, terrorists, or traitors (especially if the groups’ members are nationals of the State against which they fight), but certainly not as equals.

On a closer look, Quentin’s proposal appears to ask the overall control test to do more than it is meant to. If an armed group is under the overall control of a State, an IAC exists between two States, not between a State and the other State’s proxy (Cassese, p.655; ICRC, para. 306). This means that legally the authority to intern POWs in this case would still pertain to Russia and would not be transferred to the D/LPR. Although the D/LPR would be able to capture Ukrainian soldiers, it is Russia that ultimately has the legal authority to intern them as POWs. In fact, in a recent statement, the Ukrainian Ministry of Foreign Affairs refers to Ukrainian POWs held “by the Russian side” generally.

This interpretation is supported by Article 12 GC III, which indicates that POWs “are in the hands of the enemy Power, but not of the individuals or military units who have captured them” and that “the Detaining Power is responsible for the treatment given them” (ICRC, paras. 1510, 1530). The responsibility for the internment and treatment of Ukrainian POWs is Russia’s and not its de facto agents and organs. This solution is also in line with other GC III provisions, as I will explain in the following sections.

The Camp Commander

Article 39 GC III requires POW camps to be “under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the Detaining Power.” According to the above-mentioned OSCE mission report (pp. 13-14) and to the ICRC (para. 2483), a literal interpretation of this provision should be discarded in favor of one that considers the reference to “regular armed forces” to include also groups under the overall control of a party to a conflict. Sean Watts understandably took issue with this and similar interpretations of GC III, which depart from both the plain meaning of the provisions and the subsequent practice of the State parties.

The wording of Article 39 GC III was meant to specifically avoid POW camps being placed under the authority of non-commissioned officers or members of paramilitary or non-military organizations (ICRC, paras. 2481-2482; UK LOAC Manual, para. 8.44). If the drafters had wanted to allow someone other than a “commissioned officer belonging to the regular armed forces” to be in charge of POW camps they would have said so explicitly, but they did not. To me, this suggests that Article 39 GC III does not allow for POW camps to be placed under the authority of a member of the D/LPR proxies, unless the latter were integrated in the regular armed forces of Russia. In order to comply with this provision, POW camps must be put under the authority of a Russian commissioned officer. This does not seem an unrealistic requirement given that Russian forces are undoubtedly present in Donbas, although accurate information concerning their interactions with the D/LPR is unavailable.

Discipline and Treatment of POWs

GC III contains several provisions on disciplinary and penal sanctions that can be imposed on POWs (Articles 82-108). These rules are based on the so-called “principle of assimilation,” which requires POWs to be subjected “to the laws, regulations and orders in force in the armed forces of the Detaining Power” (Article 82 GCIII). Marco Sassòli proposed interpreting these obligations, in order “to keep them realistic,” as referring to the D/LPR rather than to Russia. I wonder whether this actually is a realistic solution.

To start with, I do not think any State would agree that Article 82 GC III should be interpreted to allow the assimilation of their captured soldiers with the armed forces of an armed group, rather than of a State. In this specific case, I doubt that Ukraine would accept Ukrainian POWs being treated pursuant to the regulations of the D/LPR.

Additionally, as I have discussed elsewhere (pp. 15-17), the application of the provisions on the disciplinary regime for POWs by armed groups encounters several difficulties, including the fact that the GC III system needs to be implemented through domestic military law and informed by human rights standards (Rowe, pp. 1026-1027). While the existence of disciplinary rules and systems has been considered a factor indicating the organization of armed groups parties to a NIAC (e.g., Haradinaj, para. 60), IHL does not require armed groups to adopt a system equivalent to national military law.

Finally, the fact that an armed group is under the overall control of a State does not imply that it is better organized or otherwise better able to comply with the law of IAC than an armed group party to a NIAC. Armed groups might lack the capacity to comply specifically with the GC III system on disciplinary and penal sanctions of POWs (which includes several rules on courts, procedure, and penalties), as well as more generally with the many articles of GC III which painstakingly regulate the treatment of POWs. While the law of NIAC contains minimum guarantees for the treatment of individuals deprived of liberty, the parties to a NIAC might decide to bring into force only parts of the Convention by virtue of a special agreement (Common Article 3, para. 3). Presumably, they would choose to bring into force provisions that can realistically be applied also by the armed group.

Conclusion

With this post, I hope to have prompted the readers’ reflections on the difficulties that arise from interpreting the rules of GC III in armed conflicts fought by proxy. If we use the overall control test to classify a conflict as an IAC, and if this test is satisfied in relation to Russia and the D/LPR, we need to make sure that the overall control test does not overpromise and underdeliver when it comes to the treatment of POWs.

***

Alessandra Spadaro is Assistant Professor of Public International Law at Utrecht University.

 

 

Photo credit: Mystyslav Chernov

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