The Ukraine crisis and the international law of armed conflict (LOAC): some Q & A
With intense fighting underway in the Ukraine, this post in our series is designed to give brief answers to some law of armed conflict questions this invasion and subsequent crisis has generated. They are by no means full dissertations on often complicated applications of the law, but will—hopefully—help you get started with your own assessment.
Do the Geneva Conventions apply?
Yes, this is a classic state-on-state international armed conflict which, in accordance with common Article 2 of the 1949 Geneva Conventions, triggers their full application. This is so even if the Russians call it a “peacekeeping” mission or whatever as Article 2 says the Conventions apply to any “armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”
Furthermore, the Geneva Conventions have applied between Russian and the Ukraine at least since the takeover of Crimea in 2014. Why? Article 2 also says the Conventions “shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”
This is a somewhat different body of law than that applicable to America’s post-9/11 wars. In those only common Article 3–just a sliver of the Geneva Conventions—technically applied because it is the only Article that explicitly governs conflicts involving a non-state actor. Such conflicts are considered “non-international armed conflicts” if one side is composed of non-state actors, even if the other side involves multiple countries who are “High Contracting Parties.”
Common Article 3 does provide some basic protections. Importantly, however, much—but certainly not all—of what the Geneva Conventions require in Article 2 state-on-state conflicts has migrated into what is called customary international law (CIL) applicable to non-international armed conflicts. CIL is binding on all belligerents even if not set forth in a treaty to which they are a party. One compilation of the law applicable to Article 3 conflicts is found here, and this may have application in the Ukraine in the future if the government is defeated, but an insurgency arises.
Are Ukraine and Russia parties to the Geneva Conventions and other international treaties?
Ukraine is a party to most international treaties related to armed conflict (list here). The Russian Federation is likewise a party to a range of international treaties related to armed conflict, including the four original Geneva Conventions of 1949 (list is here). Notably, however, in 2019 Russia withdrew a declaration from Protocol 1 of those conventions, a 1977 additional agreement which contains many prohibitions intended to protect civilians during armed conflict. (See the article here, and see as well the clarifying *Update below).
The U.S. is also not a party to Protocol 1 but accepts many of its provisions as CIL. In my opinion, the best discussion of the U.S.’s view of what is or is not CIL is found in Air Force Colonel Ted Richard’s monograph, Unofficial United States Guide to the First Additional Protocol to the Geneva Conventions of 12 August 1949. Additionally, the U.S. Department of Defense’s perspective can found in various parts of its Law of War Manual (DoD LoW Manual).
As a general proposition, Russia does seem to recognize that CIL applies in armed conflict situations in addition to treaty obligations, but exactly which norms it believes apply are unclear. Consider this from a 2003 article (“The implementation of international humanitarian law in the Russian Federation”) found in an International Committee of the Red Cross (ICRC) publication:
[T]he Law on International Treaties that was enacted in 1995 does state in its preamble that “the Russian Federation adheres to strict observance of conventional and customary norms”. However, the very fact that customary norms are referred to only in the preamble to that law, and that it provides no further guidance as to how these norms are incorporated into Russian law, may serve as evidence of a reluctant attitude towards the integration of uncodified custom into domestic law.
If Russia violated international law by invading the Ukraine, are Russian soldiers still governed (and protected) by the law of armed conflict (LOAC)?
Yes. There are two separate bodies of law involved here. Assessing Russia’s accountability for waging of aggressive war is the purview of the jus ad bellum which governs the legality of the resort to force. Put in political terms, it determines what is an “act of war.”
The other, separate body of law is called jus in bello. The ICRC describes it as the law that “regulates the conduct of parties engaged in an armed conflict.” Here’s the key (substituting “”LOAC” for International Humanitarian Law (IHL) terminology the ICRC uses):
[LOAC] applies to the belligerent parties irrespective of the reasons for the conflict or the justness of the causes for which they are fighting. If it were otherwise, implementing the law would be impossible, since every party would claim to be a victim of aggression. Moreover, IHL is intended to protect victims of armed conflicts regardless of party affiliation. That is why jus in bello must remain independent of jus ad bellum.
To be clear, the wrongness or rightness of a belligerent’s resort to force does not determine the application of LOAC.
What is the status of the Ukrainian citizens who rise up against Russian invaders?
The Washington Post and other news outlets tell us that “ordinary civilians heed calls to fight for the Ukraine however they can.” This raises a concept in international law many thought was an anachronism never to be seen in 21st century warfare between major nations: levee en masse. One scholar explains it as the:
…spontaneous uprising of the civilian population against an invading force – [and] has long been a part of the modern law of armed conflict with regard to determining who may legitimately participate in armed conflict. The concept originated during the revolutionary wars in America and France, and was incorporated into the first codified rules of armed conflict. However, despite the prevalence of the category of levée en masse in the modern laws of armed conflict, there have been few, if any, instances of levée en masse taking place in modern armed conflicts.
There are LOAC requirements and implications of a levee en masse. The ICRC defines it this way:
The term applied to 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 into regular armed forces. They must be regarded as combatants if they carry arms openly and respect the laws and customs of armed conflict. If captured they have a right to be treated as prisoners of war. The levée en masse should not be confused with resistance movements.
Note the several qualifiers for the status (e.g., acting “spontaneously”) and that it doesn’t apply to resistance movements once a country is occupied. It does, however, make the participants “combatants” which gives them immunity from prosecution by any state for, among other things, lawfully killing an enemy combatant. If captured, they get all the rights of a prisoner of war.
The DoD LoW Manual has a section devoted to this status (¶ 4.7) and points out some unique aspects not applicable to other combatants. For example, it says:
A levée en masse is a spontaneous uprising in which members have not had time to form into regular armed units. Thus, unlike other categories of lawful combatants, persons who join a levée en masse need not wear a distinctive sign nor be organized under a responsible command. The spontaneity of their response generally precludes their being able to take such measures. (Emphasis added.)
There are also downsides: persons acting as a levee en masse are lawfully targetable. I am concerned that the Russians may contend that the Ukrainian government’s “call to arms”—along with the lack of a distinctive sign designating those who have joined the levee–has turned the entire sentient adult population in the Ukraine into lawful targets.
This would be incorrect, as not everyone will join a levee en masse, and the burden remains on the attacker to have a reasonable, good faith belief that a target is a lawful one, that is, a member of a levee en masse—as difficult as that determination may be.
Still, arming and throwing untutored albeit brave persons into combat against trained and heavily armed soldiers could be costly in human capital. But with a much smaller military and without many defensive mechanisms at the onset of the invasion, the fact that the levee en masse formed certainly helped Ukraine in these early invasion stages.
But here’s a key legal note concerning who the invading force can treat as possibly belonging to a levée: the DoD LoW Manual points out “[s]hould some inhabitants form a levée en masse to defend an area, it may be justifiable for the invading force to detain all persons of military age in that area and treat them as POWs.”
What about human shields?
Russia has made vague claims about Ukrainians using human shields (see here and here) but hasn’t offered any real evidence. Of course, the use of involuntary human shields is strictly forbidden by LOAC. Human Rights Watch describes the law this way:
Belligerents are prohibited from using civilians to shield military objectives or operations from attack. “Shielding” refers to purposefully using the presence of civilians to protect military forces or areas, making them immune from attack.
Similarly, the DoD LoW Manual insists–correctly in my opinion—that “protected persons [civilians] may not be used to shield, favor, or impede military operations.” (¶ 220.127.116.11) (Keep in mind that those who join a levée en masse are no longer “protected persons” while they serve.)
What about voluntary human shields? My own view is a nuanced one (found here). The DoD LoW Manual makes this observation (¶ 18.104.22.168):
[T]he enemy use of voluntary human shields may be considered as a factor in assessing the legality of an attack. Based on the facts and circumstances of a particular case, the commander may determine that persons characterized as voluntary human shields are taking a direct part in hostilities.
The phrase “direct part in hostilities” is important because civilians who do so lose their protection against attack. Consider then the reports (here) that unarmed Ukrainian civilians are using “their bodies to block Russian tanks.”
To be clear, there is no evidence of any organized effort by the Ukrainian government to try to use protected civilians as human shields to “impede military operations” in contravention of LOAC. Those Ukranians who nevertheless try to use “their bodies”–with or without government involvement–to “impede” Russian military operations run the risk of finding themselves considered civilians who are taking a “direct part in hostilities.”
Such persons are subject to being targeted with lethal force, even if they intended their effort to use “their bodies to block Russian tanks” to be more of a political statement than a serious effort to physically stop the armored vehicles.
Is it legal for Russian soldiers to dress in civilian clothes to infiltrate the Ukraine?
The Washington Post reported the Ukrainian government charges that “enemy reconnaissance and sabotage groups operate insidiously, disguising themselves in civilian clothes and infiltrating cities to destabilize the situation by carrying out sabotage operations.”
The DoD LoW Manual (¶ 4.17) provides a straightforward answer:
Belligerents may employ spies and saboteurs consistent with the law of war. However, any person (including individuals who would otherwise receive the privileges of lawful combatants) engaging in spying, sabotage, or similar acts behind enemy lines, is regarded as an unprivileged belligerent while doing so. These persons forfeit entitlement to the privileges of combatant status and may be punished after a fair trial if captured.
This doesn’t mean that every soldier found behind the opposing party’s line is denied PoW status and is criminalized as a saboteur, but rather only those who act “clandestinely” by “deliberately concealing or misrepresenting [their] identity and conduct…[by wearing] a disguise, such as civilian clothes.” The Manual adds:
Persons who act openly, such as by wearing the uniform of the armed forces to which they belong, do not meet this element. For example, members of a ground reconnaissance team or couriers who wear their normal uniforms would not meet this element. In addition, observers on military reconnaissance aircraft have not been regarded as acting clandestinely or under false pretenses.
Does publishing photographs of prisoners of war violate LOAC?
Newsweek and other media sources report that various Ukrainian government entities have published photographs of persons alleged to be Russian prisoners of war. This may – or may not – violate LOAC. I addressed the law in this regard in a 2019 post (“Did Pakistan’s photos/videos violate the Geneva Conventions…or ease a crisis?”), but let me reiterate some of it here.
Article 13 of the Third Geneva Convention (which is the provision in question here) does not prohibit, per se, the release of photos or videos of prisoners of war. Here’s what Article 13 says in relevant part: “prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.”
So, yes, sometimes releasing photos or video may constitute “insults and public curiosity” from which the prisoner is to be protected. That is not, however, always the case. One way to discern if the prohibition applies in a particular instance is to evaluate the “intent” behind a given video or photo release.
In his 2016 textbook on the law of armed conflict, Prof Gary Solis agrees, saying that whether or not a photo release amounts to violation “may turn on the purpose for which it was taken and the use to which it is put.”
Solis adds this important observation:
[I]t may be argued that there is an overblown sensitivity to showing any photos whatsoever of captives. As long as the camera does not linger on a particular captive, show him or her in humiliating poses or situations, or use the picture for propaganda purposes, the necessary mens rea, or culpable negligence for a criminal prosecution, is absent. Even the brief image of a prisoner’s face in the context of a legitimate informational account should not lead to concern for a prisoner’s protection under the Geneva Convention.
So was there an intent to “humiliate the captive” by the Ukrainian release? To “use the picture for propaganda purposes”?
Based on the scant information found in press reports, it is close call as to whether it was permissible to distribute the photos at this point. But the case might be made that, given the potential of the Russian disinformation machine, it was important to demonstrate in advance of any allegation that the Ukrainians were, in fact, taking prisoners as LOAC requires, and that the captives were in good shape.
Still, the bottom line is that prisoners of war should not be propaganda tools.
Can other countries supply weapons and war supplies to the Ukraine without being a co-belligerent in war?
President Biden committed to providing over a billion dollars in security assistance to the Ukraine, but this does not, in my view, make the U.S. a co-belligerent with the Ukraine in its war with Russia. There are, however, scholars who may differ. For example, one concluded in 2015:
[T]he systematic or substantial supply of war materials, military troops, or financial support in association, cooperation, assistance or common cause with another belligerent would make it a co-belligerent.
Nevertheless, although the U.S. and other countries may be providing substantial military supplies to the Ukraine, I don’t think that fact, alone, would be sufficient to characterize the U.S. (and NATO) as co-belligerents with the Ukraine in the war with Russia.
Determining the precise legal status of the U.S. and that of other countries supplying weaponry is tricky. The best option may be to consider the U.S. as being, technically, a neutral in the context of international law, notwithstanding its aggressive support of the Ukraine as a matter of international politics.
That, however, doesn’t end the conversation. The law of neutrality is very complex, but a traditional interpretation would say:
A neutral State violates neutrality by breaching its obligation to remain impartial and to not participate in the conflict. For instance, a State would violate neutrality by supplying warships, arms, ammunition, military provisions or other war materials, either directly or indirectly, to a belligerent, by engaging its own military forces, or by supplying military advisors to a party to the armed conflict.
However, the DoD LoW Manual notes (¶15.2.2) that “before its entry into World War II, the United States adopted a position of ‘qualified neutrality’ in which neutral States had the right to support belligerent States that had been the victim of flagrant and illegal wars of aggression.”
This is, the Manual readily acknowledges, a controversial position. It may be one that was thought to have been obviated by the emergence of the UN Charter with its Security Council system. However, given Russia’s ability to veto any Security Council action, ‘qualified neutrality’ (or something like it) may enjoy a renaissance in opinio juris and, especially, state practice.
Nevertheless, even assuming a breach of neutrality because of the supply of war material to the Ukraine, I don’t consider that to be enough to earn a characterization as a co-belligerent for the U.S. or it’s allies in this particular instance, at least so far. That said, it could be possible to interpret CIL so as to make any war material (“contraband”) heading to the Ukraine subject to interdiction or even attack enroute.
Does it violate LOAC to use “ballistic missiles and other explosive weapons with wide area effects in densely populated areas”?
Amnesty International recently charged:
“The Russian military has shown a blatant disregard for civilian lives by using ballistic missiles and other explosive weapons with wide area effects in densely populated areas. Some of these attacks may be war crimes. The Russian government, which falsely claims to use only precision-guided weapons, should take responsibility for these acts,” said Agnes Callamard, Amnesty International’s Secretary General.
It is true that an indiscriminate attack on an urban area, that is, one that fails to adequately distinguish between military targets and civilians and/or civilian objects, would be a serious LOAC violation. However, that does not mean any use of “ballistic missiles and other explosive weapons with wide area effects” in an urban area is, ipso facto, a LOAC breach as it is possible to use them lawfully. Like so many others aspects of LOAC, the facts matter.
In 2020 the former Judge Advocate General of the Army noted that the “International Committee of the Red Cross and other nongovernmental organizations advocate regularly that wide area effect weapons in urban areas should be prohibited.” After commenting on the nature of future war, he contended that “notions that high explosives in cities violate LOAC are not just unworkable in the next war – it is not the law.”
I expand on my view here, but the key point is this:
There are plenty of weapons the ICRC wants banned from urban conflict that can be used in particular situations in full compliance with the law of war. As I’ve said before, the better way to protect civilians is not weapons’ bans, but rather strict adherence to the core principles of the law of war.
In short, I wouldn’t be surprised if in this case the Russians actually did use these weapons in an indiscriminate way, but it’s a mistake to automatically assume that using “ballistic missiles and other explosive weapons with wide area effects in densely populated areas” always violates LOAC.
If commercial satellites, social media, and other “open source” capabilities become de factor intelligence sources for belligerent militaries, what are the LOAC implications? What about the hostile use of cyber?
There could be LOAC implications, and these are discussed in more detail in these posts: “Are we ready for war in the infosphere” and “Are commercial satellites used for intelligence-gathering in attack planning targetable?”
Furthermore, Mike Schmitt has a superb post with additional information, particularly about how the U.S. and NATO countries might react to hostile cyber operations conducted by Russia. Here’s what his article addresses:
This article examines how the feared Russian cyber operations would be characterized under international law and outlines the response options open to States targeted by them. The analysis is, among other things, a cautionary note to those who would too readily jump to describing such Russian operations as an “attack” that triggers the alliance’s collective self-defense mechanism. It is important to sort through the more likely scenarios of Russian-led activity below that threshold, as well as if that threshold is crossed. And it’s important to comprehend how the legal framework applies to Russian use of non-state actors to carry out such operations.
So, yes, you need to read it.
Are flamethrowers legal?
A recent media headline read “Russian army deploys its TOS-1 heavy flamethrower, capable of vaporizing human bodies, near Ukrainian border, footage shows.” A TOS-1 isn’t like a handheld flamethrower that you might imagine as itself spewing flames, but rather a 24 rocket system mounted on the chassis of an armored vehicle. The rockets can be incendiary or thermobaric, and here’s a description:
The TOS-1A heavy flamethrower system is intended for direct fire support of advancing infantry and main battle tanks, and moves in their combat orders. It is extremely effective against entrenched personnel. The TOS-1A is used to clear out buildings, field fortifications and bunkers. It is also effective against light armored vehicles. The heavy flamethrower system is generally similar to multiple launch rocket systems, however it fires different types of rockets and has a shorter firing range.
These are, however, terrifying weapons. A thermobaric munition is described this way:
Dubbed the ‘father of all bombs’, a thermobaric weapon works by using oxygen from the surrounding air to generate a high-temperature explosion, making it far deadlier than a conventional weapon…The so-called ‘vacuum bombs’ are capable of vapourising (sic) human bodies, crushing internal organs and reducing cities to rubble causing huge loss of life.
As gruesome as these weapons can be, they are not, per se, illegal. (See DoD LoW Manual ¶ 6.14). However, Protocol III of the Convention on Certain Conventional Weapons (CCW) does have various limitations on the use of incendiary weapons (but does not find them illegal). The CCW says that:
It is further prohibited to make any military objective located within a concentration of civilians the object of attack by means of incendiary weapons other than air-delivered incendiary weapons, except when such military objective is clearly separated from the concentration of civilians and all feasible precautions are taken with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.
Thus, although the U.S. has a reservation to this prohibition that retains the right to use incendiary weapons “where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons,” it seems clear that there would be few instances where they could be used near civilians and still comply with LOAC’s proportionality analysis.
However, as one official put it, Russians “don’t adhere to the same principles of necessity and proportionality and rule of law that Western forces do.” And, that, of course, is a defining point.
No doubt there will be more issues, and the answers above may need to be revised (and, perhaps corrected), especially as new facts come to light. Facts matter. Laws matter. Context matters.
It is extremely important that we do our best to get the LOAC right, and have it properly and fairly applied, even as we are appalled by the terrible invasion and crisis unfolding in the Ukraine.
What we pray for is that this unnecessary and life-threatening war ends quickly. While we need laws as a framework, all the laws in the world can’t take the place of the morality of respecting and valuing freedom and human life.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
* Update: An alert reader clarifies that, in fact, Russia did not withdraw from Protocol I of the Geneva Conventions but only withdrew the declaration through which the USSR had recognized the competence of the International Fact-Finding Commission under article 90 of the Protocol. (see here).
Last edit: 1 Mar 22 – 1241 hrs