Ukraine Symposium – Ukraine’s Levée en Masse and the Obligation to Ensure Respect for LOAC

In its quest to mount military resistance to the Russian invasion, Ukraine has looked beyond its regular armed forces to its citizens and others. The status of some fighting forces, and consequential issues of detention and targeting in accordance with the law of armed conflict, have garnered attention, including in several posts here on Articles of War (see for instance here, here, here, and here). This post addresses the obligation of Ukraine to ensure that these forces respect the law of armed conflict. In so doing, it focuses on Ukraine’s levée en masse.

Internal Dimension of the Obligation to Ensure Respect

As Marten Zwanenburg reminds us, High Contracting Parties to the 1949 Geneva Conventions and the 1977 First Additional Protocol are under an obligation “to respect and to ensure respect” for the respective treaties “in all circumstances.” While the former obligation to respect is a reaffirmation of the general rule that States may not violate the Conventions and the First Protocol, the obligation to ensure respect has an internal dimension that requires them to cease and take proactive steps to prevent violations. Some advocate a more controversial external dimension that extends to States not party to an armed conflict to ensure respect by other States Parties to the Geneva Conventions (GCs) and the First Additional Protocol (AP I). However, it is the internal dimension of the obligation to ensure respect that is the focus of this post.

According to the International Committee of the Red Cross (ICRC) updated Commentary (para. 146), the internal dimension of the obligation to ensure respect leaves some latitude to States in the choice of measures that are taken, except in cases where the GCs and AP I spell out specific obligations. The obligation to ensure respect hence encapsulates a generic obligation, which manifests but does not exhaust itself in a number of specific obligations. The latter include: the obligation to disseminate and instruct the armed forces and, if possible, also civilians; the obligation to suppress breaches, including the obligation to search for and either prosecute or extradite alleged perpetrators of grave breaches of the Conventions and the First Additional Protocol; the obligation to appoint legal advisors “when necessary”; and the obligation to “give orders and instructions to ensure observance of the Conventions and … Protocol [I], and [to] supervise their execution” (AP I, art. 80(2)). Other relevant obligations are those pertaining to the appointment of Protecting Powers or their substitutes, and the enquiry procedure.

Importantly, several of the aforementioned specific obligations—and by implication also the more generic internal dimension of the obligation to ensure respect—apply in peacetime as well as during an armed conflict. As the ICRC’s updated Commentary (para. 145) puts it: “Respecting the Conventions in case of an armed conflict regularly presupposes that preparations have been made in advance.” At least equally importantly, both the generic and some of the specific obligations reach beyond the armed forces—both regular and irregular—to include the whole of the population over which a State exercises authority. As regards the latter, the obligation to ensure respect is construed as a due diligence obligation to prevent and repress breaches of the Conventions and AP I, “whose content depends on the specific circumstances, in particular the foreseeability of the violations and the State’s knowledge thereof, the gravity of the breach, the means reasonably available to the State and the degree of influence it exercises over the private persons” (ICRC updated Commentary para. 150).

Ensuring Respect by Ukraine’s Levée en Masse

Ukraine has implemented several of the aforementioned obligations. It has, among other adopted national legislation, military instructions and a law of armed conflict manual, and educational programs at military institutes and universities that are designed to give effect to inter alia the obligation to instruct the armed forces, to disseminate the law of armed conflict more broadly, to appoint legal advisors, and to suppress law of armed conflict violations. While it is beyond the purview of this post to examine the contours of these implementation measures in any detail, one of the pivotal issues that arises in the current context is whether and to what extent any of these measures are designed adequately to ensure respect by participants in the levée en masse.

It is unclear whether citizens who have heeded the call to resist the invading Russian forces have been or are receiving any instructions on or training in the law of armed conflict. Indeed, the pace of the developments preceding the Russian invasion and the hastiness of mobilization suggest that little time and attention was left to do so. The very qualification of parts of the resistance forces constituting a levée en masse is indicative of the spontaneous nature of their actions and the lack of time for them to form themselves into regular armed units.

While respect for the law of armed conflict is one of the conditions for members of a levée en masse to attain prisoner of war status, it lies in the nature of a levée en masse that available measures to ensure such respect differ from those available to ensure the respect of regular armed forces. Mobilization efforts such as the one in Ukraine leave little time and opportunity to instruct and train members of the levée en masse. Instead, any knowledge of the law of armed conflict will likely stem from those broader dissemination efforts that are addressed to the whole population over which a State exercises authority. It is worthy of note in that regard that a 2021 Report on national implementation measures of Ukraine posits that “no significant initiatives by the Government of Ukraine to educate the general public on IHL have taken place. However, serious efforts have been made for the dissemination and training on IHL by the Ukrainian Red Cross Society” which appear to have focused on the provision of humanitarian assistance, the Fundamental Principles of the International Movement of the Red Cross and Red Crescent, and the dissemination of IHL principles for its volunteers, employees, and youth organizations. (p 54)

It would therefore appear safe to assume that significant gaps in the knowledge about the law of armed conflict exist in the general public. Insufficient knowledge in turn increases the risk for violations. Can members of the levée en masse reasonably be expected to act in conformity with the ins and outs of legal restrictions on the use of Molotov cocktails if they have not been instructed or trained? What is the prospect for them to refrain from using prohibited expanding bullets (commonly used as hunting ammunition) when firing their hunting rifles at Russian forces? Are they aware of the prohibition of the use of poison? Do they know the legal requirements for the treatment of persons hors de combat, including prisoners of war that they capture, and wounded and sick Russian service personnel that they encounter? While the list of questions is of course much longer, they are indicative of the challenges to the implementation of the obligation to ensure respect with the law of armed conflict in the case of a levée en masse and similar situations where parties to an armed conflict rely on the civilian population in their quest to mount resistance.

That is not to suggest that the obligation to ensure respect is devoid of any normative content in such circumstances. To the contrary: it lies in the broad and generic nature of that obligation as explained above that Ukraine is legally obliged to take those measures that can reasonably be expected of it in the current circumstances. Indeed, the degree of influence that it exerts over those who heed the call to resist the Russian forces seems to be such that it can—and therefore shall—be used to ensure respect for the law of armed conflict.

For one, the widespread use of social media by the Ukrainian authorities that proved instrumental in mobilizing and continues to be crucial in their communication with the population, can be used to spread knowledge about the law of armed conflict, officially confirm Ukraine’s commitment to it, instruct members of the levée en masse to act in compliance, and remind everyone of the consequences of breaches of it. Another measure to ensure respect would be to strive for a swift build-up or strengthening within the levée en masse of a command structure and disciplinary rules and mechanisms, both essential tools in ensuring compliance. Elements of that endeavour would appear to be envisaged in Ukraine’s law “On the foundations of national resistance,” which entered into force on January 1, 2022, but which Ukraine did not have the time to fully implement by the time of the start of the Russian invasion (see here and here).

Conclusion

The endeavour to strengthen command structure and discipline should aim for a transformation of the levée en masse into regular armed units as soon as possible, in line with the transitionary character of a levée en masse. Furthermore, the aforementioned measures need to be accompanied by a strict observance of the obligation to suppress beaches of the law of armed conflict, whether committed by its regular armed forces, members of the levée en masse or civilians. It is not only in the interest of Ukraine to do so in order to retain the moral high ground in the face of increasingly disturbing indications of a pattern of widespread and systematic violations of the law of armed conflict by Russian forces. It is also a matter of Ukraine upholding its international legal obligation to ensure respect.

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Jann K. Kleffner LL.M. is Professor of International Law at the Swedish Defence University and Extraordinary Professor at the Faculty of Law of the University of Pretoria, South Africa.

Photo credit: Ministry of Internal Affairs of Ukraine via Wikimedia Commons