Russian Troops Out of Uniform and Prisoner of War Status

The presence of Russian troops in civilian clothes or Ukrainian military uniforms has been repeatedly reported during the conflict, especially attempting to enter Kyiv. As Ukrainian forces continue to defend their nation, the detention of Russian troops—including those in civilian clothes or Ukrainian uniforms—will become a growing concern. This post addresses whether international humanitarian law (IHL) requires Ukraine to provide them prisoner of war status if captured out of uniform.   

Article 4 of Geneva Convention III

We believe it does not, but the matter is far from settled, as we shall explain. A­rticle 4A of the Third Geneva Convention sets out the eligibility criteria for prisoner of war (POW) status. It has six subparts, the first three of which bear on this issue. Article 4A(1) states that members of the armed forces and regular militia forming part of the State’s armed forces are entitled to POW status. It is members of this group that we are addressing.

Article 4A(2) provides that “members of other militias and members of other volunteer corps, including those of organized resistance movements” are also entitled to POW status provided that they meet four conditions. Two of those conditions are relevant to the issue at hand. The most important requirement is that the irregular forces “hav[e] a fixed distinctive sign recognizable at a distance.”  The other is that the members must “carry[] arms openly.”  Today, the distinctive sign requirement is typically met with a uniform, although any means of distinguishing oneself from the civilian population will suffice, such as the yellow armbands being worn by Ukrainian defense forces volunteers.

Article 4A(3) pertains to “members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.”  The paradigmatic example is the “Free French” forces loyal to General Charles de Gaulle during World War II.

Of the three categories, only Article 4A(2) imposes conditions on forces—the irregular militia and volunteer corps—for POW status.  This textual distinction has resulted in competing positions regarding the regular armed forces, uniforms (or other distinctive indicia), and POW status under Article 4A(1). By the first, the wear of the uniform or other distinguishing attire at the time of capture has no bearing upon status as a POW; it is the captured soldier’s membership in the enemy armed forces that accords that status. LTC Ronald Alcala and MAJ Steve Szymanski embrace this position in their Articles of War post. In our opinion, the better view is that those captured out of uniform are unprivileged belligerents (sometimes labeled “unlawful combatants”) and enjoy neither prisoner of war status nor combatant immunity.

Points of Agreement

Before turning to the two positions, it must be noted that there is agreement that Russian soldiers spying or engaging in sabotage in areas controlled by Ukrainian forces forfeit their right to POW status. As noted in the DoD Law of War Manual (§ 4.17.5),

Spies, saboteurs, and other persons engaged in secretive hostile activities behind enemy lines, … by acting clandestinely or under false pretenses, fail to distinguish themselves as combatants generally must do. Thus, persons otherwise entitled to privileges of combatant status, including POW status, forfeit their entitlement to those privileges while engaged in spying, sabotage, or other hostile, secretive activities behind enemy lines.

The negotiating history of Article 4 (see sources at Law of War Manual 153, n. 361), non-binding expert projects (1874 Brussels Declaration; 1880 Oxford Manual), treaty provisions [1907 Hague IV Regulations, art. 31; 1977 Additional Protocol I, art. 46(1)], and case law (Ex parte Quirin, Mohamed Ali) support this conclusion. While some of these sources, like Article 46(1), cite only spies, the 2020 ICRC Commentary to the Third Geneva Convention points out that “there is a well-established practice that saboteurs are treated in the same way as spies with regard to prisoner-of-war status” (¶ 990).

There is also agreement that the requirement for a “distinctive sign” does not require wearing a full military uniform. The DoD Law of War Manual explains (§ 4.6.4.1),

The requirement does not specify a particular sign or emblem that persons must wear. Wearing a military uniform satisfies this condition. However, a full uniform is not required. The sign suffices if it enables the person to be distinguished from the civilian population. For example, a helmet or headdress that makes the silhouette of the individual readily distinguishable from that of a civilian can meet this requirement. Similarly, a partial uniform (such as a uniform jacket or trousers), load bearing vest, armband, or other device could suffice, so long as it served to distinguish the members from the civilian population.

The ICRC agrees (2020 ICRC Commentary, ¶ 985).

Finally, wearing enemy uniforms while engaging in attack or to otherwise “shield, favour, protect or impede military operations” is unlawful; it is not otherwise prohibited. For parties to Additional Protocol I, like Ukraine and Russia, the prohibition appears on Article 39(2). The article reflects customary international law (DoD Law of War Manual, § 5.23.1; ICRC Customary IHL study, rule 62). However, mere violation of IHL is not a basis for denial of POW status. Therefore, the POW status of such individuals turns on the discussion that follows.

The Argument Against an Article 4 Uniform (Distinctive Emblem) Requirement

The starting point for those who argue that members of the regular armed forces need not wear uniforms or other distinctive indicia to benefit from POW status is the text itself. Advocates of this approach point to the presence of the criteria in Article 4A(2) but not in 4A(1) or 4A(3) as indicating the drafters intended to limit their applicability to members of militia or volunteer corps, including organized resistance movements, that are not part of the armed forces. For members of the regular armed forces like the Russians who might be captured by Ukrainian forces, the determinative factor is membership in those forces.

Interestingly, the Final Record of the Diplomatic Conference that produced the Convention records a discussion supporting this interpretation (pp. 466-67). The Soviet representative expressed concern that the text might be interpreted to impose conditions on the regular armed forces to qualify for POW status. His counterpart from Belgium assured him that the intent was that only militia or volunteer corps members would be required to fulfill the four conditions.

Distinguished scholar/practitioners like the Hays Parks, the U.S. Army’s and later Department of Defense’s Law of War Adviser, and Major General (ret.) A.P.V. Rogers, former Director of the U.K.’s Army Legal Services, also adopted this position, as has the current Co-Director of the Lieber Institute, Sean Watts (ch. 44). Parks, for example, argued that the “[e]xtension of combatant and prisoner of war status in Article 4A(2) is intentionally and expressly narrower.” Parks also cites state practice, suggesting “[h]istorically, regular military forces’ entitlement to prisoner of war status has been absolute and unqualified.”

The DoD Law of War Manual ( §4.5.1.3) and the U.S. Army and Marine Corps Commander’s Handbook on the Law of Land Warfare (¶ 3.16) likewise adopt a “membership approach.” For instance, the latter provides, “[m]embers of the armed forces of a State party to a conflict…are entitled to prisoner of war status based on their membership in the armed forces.”  In neither instrument is this conclusion conditioned on wearing a uniform or other distinctive indicia.  

It acknowledges, however, that the conditions “reflect the attributes common to regular armed forces of a State. By seeking to ensure that participants in hostilities are sufficiently disciplined, law abiding, and distinguishable from the civilian population, these conditions help protect the civilian population from the hardships of war… These conditions may be understood to reflect a burdens-benefits principle, i.e., the receipt of certain benefits in the law of war (e.g., privileges of combatant status) requires the assumption of certain obligations” (§4.6.1).

The Argument for an Article 4 Uniform (Distinctive Emblem) Requirement

The second position, and in our view, the better one, takes the Manual’s recognition of the conditions as “attributes” of a regular military a step further. By it, the conditions outlined in Article 4A(2) are implicit in the concept “members of the armed forces.” Therefore, there was no need for the drafters of the Third Geneva Convention to add that individual members of the regular armed forces have to wear a “fixed distinctive sign recognizable at a distance” (or meet the other criteria) to benefit from POW status.

Numerous points support this interpretation. Perhaps most significantly, there is near-universal State practice stretching back for centuries of a State’s armed forces wearing distinctive indicia, and, later, uniforms. Although the original and primary purpose for uniform wear may not have been to distinguish combatants from civilians, this secondary benefit is likewise a long-standing purpose of uniform wear. By the time the 1899 Hague II Regulations were drafted (from which the language for Article 4 was modeled), members of the armed forces were those fighters who wore uniforms or otherwise distinguished themselves from civilians; a fortiori—such was the case when the Third Geneva Convention was being negotiated a half-century later. This being so, adding a uniform or other distinctive indicia condition to Article 4A(1) would have been superfluous.

The ICRC’s 1960 Pictet Commentary on Article 4A(3) makes precisely this point. As noted above, like Article 4A(1), there are no criteria in Article 4A(3). The Commentary on the latter explains that Article 4A(3) “members of armed forces” differed in “one respect only” from Article 4A(1) regular armed forces, that being “the authority to which they profess allegiance is not recognized by the adversary as a party to the conflict.”  Otherwise, Article 4A(3) forces “have all the material characteristics and all the attributes of armed forces in the sense of subparagraph (1): they wear uniforms, they have an organized hierarchy and they know and respect the laws and customs of war.”  Accordingly, “[t]he delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed forces the requirements stated in sub-paragraph 2 (a), (b), (c) and (d)” (p. 62). In other words, the Commentary justifies omitting the criteria vis-à-vis Article 4A(3) by reference to Article 4A(1). For that reason, there would equally be no reason to set forth the requirements in the latter. 

This makes sense. After all, and as put forth in a Department of Justice Office of Legal Counsel Opinion, it would be “utterly illogical” to argue that to secure POW status, militia and other volunteer groups not forming part of the armed forces have to be in uniform or display other distinctive indicia, but members of a State’s armed forces and members of regular armed forces of an authority the capturing force does not recognize lose POW status.

Most importantly, in our opinion, teleological interpretation of Article 4A(1) supports the view. Article 31(1) of the Vienna Convention on the Law of Treaties provides that treaties are to be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” As noted in the ICRC’s 2020 Commentary, the primary object and purpose of the Third Geneva Convention are “to mitigate as far as possible, the inevitable rigours [of a war] and to alleviate the condition of prisoners of war” (¶ 144).

Interpretive note should also be taken of the principle of distinction, recognized by the International Court of Justice as “intransgressible,” the objective of which is to protect civilians from the risks of armed conflict to the extent possible. This is the primary intent in wearing uniforms and other distinctive indicia. Further, it would be difficult “to mitigate as far as possible, the evitable rigours” of war without requiring combatants to distinguish themselves from the civilian population visibly. It is simply incongruent for the principle of distinction to loom large in Article 4A(2), but not Articles 4A(1) or (3).

The ICRC has taken this position. So too have distinguished scholars. Yoram Dinstein observes, for instance, that “[b]lurring the lines of division between combatants and civilians is bound to result in civilians suffering the consequences of being suspected as covert combatants. Hence, under customary international law, a sanction (deprivation of the privileges of prisoners of war) is imposed on any combatant masquerading as a civilian in order to mislead the enemy and avoid detection.” Marco Sassoli takes the same position (p. 251), as did Waldemar Solf, Karl Partsch, and Michael Bothe (p. 285). By this approach, Russian troops captured out of uniform, whether spying or engaging in sabotage, or not, would not enjoy POW status.

The Additional Protocol I Requirement

Both Russia and Ukraine are Parties to Additional Protocol I. Article 44(1) of that instrument provides that combatants are entitled to POW status. Article 44(3) imposes an obligation on combatants to “distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack,” but then allows them to retain combatant status, and, therefore, entitlement to POW status, when unable to distinguish themselves so long as arms are carried openly in military engagements and while visible to the enemy during deployments to the engagement. Article 44(4) provides that a combatant who fails to distinguish himself as required by Article 44(3) “shall forfeit his right to be a prisoner of war.” Finally, Article 44(7) emphasizes that “[t]his article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict.”

The 1987 ICRC Commentary to Article 44(7) confirms that the 44(3) exception applies to “a combatant of the regular army,” and thus Russian soldiers (¶ 1723). However, most of the Russian troops in question would not benefit from the exception because Article 46(1) provides, “Notwithstanding any other provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy.” Recall that saboteurs are to be treated in the same manner as spies.

So, only a Russian soldier engaged in neither spying nor sabotage could qualify, as in the case of one who finds himself behind Ukrainian lines and is trying to evade back to Russian-controlled territory. If that soldier attacks Ukrainian forces (including defending oneself, see Article 49), he would have to wear a uniform or carry arms openly. The first option is impractical in the circumstances. As to carrying arms openly, note that Ukraine has distributed at least 18,000 weapons amongst its citizens, with the number growing. In that environment, it is difficult to see how carrying weapons openly while in civilian clothes would meet the intent of distinguishing oneself effectively from the enemy.

Conclusion

 Both sides of the “distinctive emblem” as a condition precedent to POW status debate have mustered strong arguments based on textual analysis, the negotiating record of the treaty, State practice, opinio juris, and the object and purpose of the Third Geneva Convention and Article 4. Although reasonable minds differ, we find such a requirement to be the better position, one defensible in law and an approach that makes good operational sense.

The approach also is consistent with the conditions for POW status under Additional Protocol I for Russian and Ukrainian forces. While it is true that Article 44 relaxes the condition, that relaxation is only likely to apply in the rarest of cases. Therefore, under current international law, we believe Ukraine is not required to give POW status to Russian troops in civilian clothes or Ukrainian uniforms.

Finally, we hasten to point out that this IHL condition applies equally to Ukrainian forces, both regular and irregular. The one exception is members of a levée en masse, who do not have to wear a distinctive emblem but must carry arms openly to qualify for prisoner of war status under Article 4A(6) of the Third Geneva Convention, the topic of a forthcoming Articles of War post. We, therefore, urge all Ukrainian forces who are not in uniform to use the yellow armband to distinguish Ukrainian fighters, thereby obligating Russian forces to accord them POW status upon capture in most cases.

This post was adopted in part from a chapter that has been accepted for publication by Oxford University Press in the forthcoming book Prisoners of War in Contemporary Conflict edited by Michael N. Schmitt and due for publication later this year.

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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.

Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy. He is also Professor of Public International Law at the University of Reading, Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas, and Professor Emeritus at the United States Naval War College.

Photo credit: kremlin.ru via Wikimedia Commons