Guest Post: Ken Watkin on “The Occupation of Ukraine and the ‘Resistance'”

The latest addition to our series on the Ukraine conflict addresses a not-often examined aspect of the Geneva Conventions: the law of occupation.  Our expert author today is my friend Brigadier-General (Ret’d) Ken Watkin.  Ken knows his stuff as he’s a lawyer who served 33 years in the Canadian Forces, including four years as the Judge Advocate General.  

Ken grapples with a number of thorny questions, including Russia’s rights and (extensive!) responsibilities as an occupying power.  Moreover, he outlines the treatment to which resistance fighters may be entitled under occupation law (it depends).  My bet is that you’ll find lots of “I-didn’t-know-that” information in his essay.  An example from my perspective:

“[U]nprivileged belligerents” participating in hostilities can be tried under the domestic law of the capturing State. However, their treatment is governed by AP I articles 44(4), which requires combatants failing to properly distinguish themselves being given protections equivalent to POWs, or the extensive human rights guarantees under article 75. (Emphasis added.)

Ken also discusses why Russia might not recognize itself as being subject to a law of occupation legal regime.  Spending a few minutes with Ken’s very clearly written essay will bring you up to speed regarding an area of the law which is, sadly, extremely relevant these days.

The Occupation of Ukraine and the “Resistance”

By Ken Watkin

The Seeds of Resistance

To date most of the international media has concentrated on military operations as Russia’s invasion has progressed, albeit much slower than anticipated.  The reporting has focused on allegations of war crimes including the indiscriminate use of cluster munitions and thermobaric weapons, the targeting of hospitals and civilian residences, as well as the unprecedented refugee situation as Ukrainians flee across international borders to safety.  Social media is replete with images of Ukrainian forces destroying Russian tanks, supply columns and aircraft.

Much less attention has been paid to the situation behind the lines in Russian occupied territory, particularly in southern Ukraine.  While the Russian attempts to capture Kyiv, Kharkiv, Mariupol, and other important urban areas appear to have bogged down, at least for now, it is reported that a number of sizable Ukrainian towns are currently under Russian occupation.

The limited reporting (see here, here, and here) from occupied territory describes a resistant Ukrainian population prompting a reaction being taken by Russian forces. This has included the alleged “kidnapping” of local mayors, the installation of pro-Russian civic leaders, the mass arrest of protesters by Russian National Guard units, Russian troops firing on demonstrators, difficulty in recruiting Ukrainians for a replacement police force, allegations of the taking of hostages and summary executions, the take-over of a TV station, and threats to cut off water and electricity for the civilian population.

The reporting also outlines the beginning of a nascent Ukrainian resistance organization with “underground resistance fighters” helping Ukrainian forces by providing targeting information, Russian raids to locate suspected Ukraine security service personnel and surviving Territorial Defence Personnel, Russian security checkpoints, and residents being ordered to switch off their mobile phone geolocation “and remove suspicious markings on trees buildings that could be artillery target markers.”

The Law of Occupation

Directly resulting from the holocaust and the widescale abuse of civilian populations held in Axis occupied territories, the development of the 1949 Convention (IV) relative to the Protection of Civilian Persons in Time of War (GC IV) was one of the most significant international humanitarian law developments following World War II.  This Convention filled a significant gap in the law and represented a shift in perspective regarding the control of territory by an occupying military force.  Russia and Ukraine are bound not only by GC IV, but also the 1949 Third Geneva Convention (GC III) as further supplemented by Additional Protocol I (AP I), and customary international law.

Prior to the mid-19th Century there was no distinction between occupation and conquest (Gerhard von Glahn The Occupation of Enemy Territory 7 (1957)). The 1863 Lieber Code reflected some change, which saw military governance of occupied territory subjected to specific rules. However, it also recognized that members of the occupied population acting as “war traitors” (e.g. providing information or communicating with the enemy) or “war rebels” (e.g. armed uprisings and sabotage) could be subjected to severe penalties including death (articles 85 and 92).  Geneva Convention IV provided a more robust set of obligations and protections regarding occupied territory.

Importantly, an occupying power does not gain sovereignty over the territory. Instead, GC IV comprehensively provides for governance and the maintenance of public order until the occupation is terminated. This includes the continuation of most existing laws and public institutions; the protection of property; a prohibition on the taking of hostages; the provision of humanitarian relief, medical and hygiene services; the operations of courts; continued service of public office holders, although subject to removal; protection of religious services; limitations on work for the occupying power; and prohibition on recruitment in the Occupying Power’s armed or auxiliary forces.

In this respect the issue in occupied Ukraine is not that uncooperative civic leaders are being removed from public office, but rather how and what happens to them. In this regard GC IV uniquely provides a detailed outline of human rights governing the treatment of persons in the hands of the occupying power, including fair trial rights. As Eyal Benvenisti has noted it is a “bill of rights for the occupied population, a set of internationally approved guidelines for the lawful administration of the occupied territories” (The International Law of Occupation 105 (2nd. ed. 2004)).

Regarding any obedience owed by the occupied population to an occupier the former JAG officer, Harvard Law professor and International Court of Justice, Richard Baxter, argued in 1950 that there was no such duty established under international law. Rather an occupying power’s ability to ensure respect for its legitimate interests sprang “from superior military power and from factual capacity to compel obedience (The Duty of Obedience to the Belligerent Occupant, British Year Book of International Law 235, 243 (1950)).

With that authority comes numerous responsibilities. The occupier’s obligation to maintain law and order includes not only policing to counter ordinary crime, but also to protect the population from attacks by armed resistance movements. As occurred during the United States led Coalition occupation of Iraq if the existing police and security forces are disbanded, unavailable or refuse to perform their duties the occupying power can use its own military, paramilitary and even police units to do so.

Given the unwillingness of some Ukrainians to enroll in a new police force it is therefore not surprising that Russia is using its own National Guard, a recently created internal security organization designed to conduct counter-terrorism operations, protect infrastructure and control the population.  However, it has also ominously been reported that former members of a feared and previously disbanded Ukrainian riot police unit called the “Berkut” have been deployed into Kherson.

All Russian security forces, as well any Ukrainian police personnel operating under their authority, must apply the human rights based law enforcement principles as reflected in the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials when dealing with public demonstrations, or otherwise policing the occupied population.  Russia is also bound by the European Convention on Human Rights for its actions in respect to the occupied territory (2021 Georgia v. Russia (II) case).

Resistance fighters

As Richard Baxter also noted (p. 235) it is “inevitable that the inhabitants of an occupied area will chafe under enemy rule…and that they will in numerous instances acting either singly or in concert, commit acts inconsistent with the security of the occupying power.” This places the Russian occupiers on a collision course with Ukrainians in occupied territory who may demonstrate their defiance with acts ranging from ordinary civil disobedience to direct participation in hostilities.

Traditionally civilians rising to attack an occupying power have been treated as unlawful participants in armed conflict, often being equated to bandits, marauders, and war criminals.  However, following World War II GC III made organized resistance movement eligible for POW status, although they had to meet the traditionally recognized conditions of combatancy (e.g.  including wearing distinctive signs and carrying arms openly). While this was widely recognized as being unrealistic given the nature of operations in occupied territory the standards for lawful belligerent and therefore POW status were further relaxed (AP I, art. 4(3)) and would apply to the present conflict.

Note, the United States refused to become a Party to the AP I (President Reagan Letter of Transmittal, 29 January 1987) in part because of this provision taking the view it “would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.” However, since Russia is bound by AP I it must recognize these more relaxed standards and provide POW status to resistance personnel meeting those criteria.

In terms of operations occurring outside of occupied territory threats have been made by Russia that if defenders at Mariupol do not surrender they could face military tribunal for siding with “bandits”. This rhetoric has to be tempered by Ukrainian armed forces, including members of the International Legion of Territorial Defence being eligible for combatant and POW status (GC III, article 4A(4) and AP I, art. 43). In contrast “unprivileged belligerents” participating in hostilities can be tried under the domestic law of the capturing State. However, their treatment is governed by AP I articles 44(4), which requires combatants failing to properly distinguish themselves being given protections equivalent to POWs, or the extensive human rights guarantees under article 75.

In a similar fashion, regarding resistance in occupied territory as Geoff Corn has noted lawful combatants are privileged participants entitled to POW status. lawful combatants are privileged participants entitled to POW status. Geneva Convention IV does recognize that acts of espionage, sabotage, causing death or injury or otherwise harming the occupying power may be made offences (articles 64 and 68). Persons not having combatant status (e.g. unprivileged belligerents) accused of such offences shall be detained in occupied territory (article 76). They may be subjected to trial before “properly constituted, non-political military courts” (article 66), which must sit in occupied territory. Importantly, Russia would need to previously promulgate the penal provisions for which such action could be taken (article 65).

Persons protected under GC IV may also be confined to assigned residence or internment if the security of the occupying power makes it absolutely necessary. Such action must be according to a regular procedure, a right of appeal and regular review (see articles 41, 42, 43, 68, and 78).  Notably, the rights and protections enshrined in the Convention are extensive and the system of internment mirrors that of the POW Convention.

Russian Acknowledgement of its Legal Obligations?

While the law of occupation sets out a governance framework over occupied territory the greatest challenge facing the international community may be in ensuring Russia acknowledges it is subject to that legal regime. In 2014 Russia claimed incorporation of Crimea into the Russian Federation and has attempted to create two “Statelets” in the Donetsk and Luhansk regions of Ukraine. As Human Rights Watch has noted Russia has conscripted males in Crimea contrary to the prohibition under GC IV.  In a speech justifying the February 2022 invasion President Putin stated Ukraine was created from historically Russian lands implying a mandate to assert Russian sovereignty over part or all of eastern Ukraine”. He has consistently used the term “special military operation” rather than armed conflict for the present operations in Ukraine.

It is reported Russian authorities “plan to organize a referendum in the Kherson region as a pretext for the region to declare independence, similar to what happened in parts of the Donetsk and Luhansk regions.”  None of these actions change the fact that Russia is occupying Ukrainian territory.  As Robin Geiß noted in a 2015 International Law Studies article Russia’s recognition of an independent Republic of Crimea was a violation of international law (p. 448). So would any other claim to Ukrainian territory based on an illegal use of force, notwithstanding attempts at holding further referendums.

As Geisß suggested (p. 445) regarding the Crimea, “labeling the situation as one of occupation may be more important than actually rendering applicable substantive provisions of the law of occupation,” although the application of occupation law remains “highly significant” and remains in place until the occupation is terminated.  In the context of Israel and the Occupied Territories such labelling has set the conditions since 1967 for ensuring the protections of occupation law provide the legal and normative standards against which State action is assessed.  Importantly, in this 21st Century conflict it establishes the accountability framework against which Russia’s actions should and must be assessed by the international community both in the immediate and longer term.

About the Author

Brigadier-General (Ret’d) Ken Watkin, OMM, CD, QC served 33 years in the Canadian Forces, four years as the Judge Advocate General, the senior military legal advisor and superintendent of the military justice system.  In 2010 he was appointed as a Foreign Observer to the Israeli Independent Commission investigating the 31 May 2010 Gaza blockade incident, was the Charles H. Stockton Professor of International Law at the United States Naval War College (2011-2012) and has worked as a counterterrorism/national security consultant with the United Nations in Nigeria and for the Canadian government. Ken is the author of Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict (OUP, 2016), and co-author of The Law in War (Routledge, 2018).

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.  

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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