Armed Ukrainian Citizens: Direct Participation in Hostilities, Levée en Masse, or Something Else?

As Russia began its invasion of Ukraine last week, much of the focus was, rightly, on Putin’s actions under international law, and the response of the Ukrainian military.  However, at the same time, media reports were also noting the increasing involvement of Ukrainian civilians in the defence of their country.  Initial reports spoke of civilian volunteers, spontaneously taking up arms to resist the Russian invaders.  As the situation rapidly progressed, news emerged that the Ukrainian government had called on all Ukrainians to defend their homeland with reports that, by Friday 25 February, more than 18,000 rifles had been passed out to civilian defence forces in Kyiv.  This civilian involvement in the defence of Ukraine takes place alongside both the conventional military defence of the state, and more organised paramilitary and militia groups who have been training for the potential invasion of Ukraine since Russia annexed Crimea in 2014. 

Media reports have called these groups and individuals various terms – paramilitary groups, militia, resistance fighters – often interchangeably.  But these terms have distinct definitions and threshold requirements under the international law of armed conflict (LOAC), and it’s worthwhile to consider them now – how exactly does international law view civilians engaged in armed conflict against an invader and what are the implications under international law if those civilians are captured or killed by Russian forces?  To ascertain this, we need to look to the law on the status of combatants and civilians under LOAC.

A primer on combatant and civilian status in international armed conflicts

In LOAC, manifold protections exist for persons who take part in hostilities within strict categories as outlined in Article 4A of the third Geneva Convention. They are known as combatants and are entitled to comprehensive protections under Geneva Convention III regarding prisoners of war (POWs).  In addition to POW status and treatment, lawful combatants enjoy so-called ‘combatant immunity’ – the right to participate in hostilities and to enjoy immunity from their warlike acts, including destruction of property and the wounding or killing of other human beings, provided these acts are committed in the context of ongoing hostilities, and were not in violation of LOAC.  However, designation as a combatant means that one can be lawfully targeted by the enemy at any time. 

Civilians are defined in Article 50 of Additional Protocol I as all persons who are not combatants.  Civilians enjoy what is known as civilian immunity – they may not be targeted by parties to the conflict and targeting civilians is a war crime under international law under Article 8 of the Rome Statute of the International Criminal Court.  Civilians enjoy immunity from direct targeting by the enemy for so long as they refrain from taking a direct part in the hostilities.  If civilians take direct part in hostilities, they are liable to be targeted for as long as they take direct part.

For combatants to be so designated, they must meet certain fundamental criteria.  Under Article 4A of Geneva Convention III, to be considered a combatant and be entitled to participate in the hostilities, one must fit into one of several categories.  The first – Article 4A(1) – grants combatant status to members of the armed forces of a party to the conflict as well as members of militias or volunteer corps forming part of the armed forces of a party to the conflict – that is, all members of the State’s armed forces, as well as any militia, volunteer corps, paramilitary groups, any even members of State law enforcement, provided they have been formally incorporated into the armed forces of the State for whom they fight. 

Under Article 4A(2), other volunteer groups not formally incorporated into the armed forces of the state are entitled to combatant and POW status and treatment, provided they are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and conduct their operations in accordance with the law of armed conflict.  Article 4A(3) recognises members of regular armed forces who profess allegiance to a government or an authority not recognized by the adverse party.  The adoption of Additional Protocol I in 1977 added national liberation fighters to the list of combatants – persons who are fighting against colonial domination, alien occupation or racist regimes, and who, carry their arms openly during each military engagement, and during such time as they are visible to the adversary while engaged in a military deployment preceding the launching of an attack in which they are participating. 

Finally, under Article 4A(6), civilians who take part in a levée en masse have combatant status, with a levée en masse defined as inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously takes up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.  Participants in a levée do not need to have a command structure, nor wear fixed distinctive signs, but must carry their arms openly and follow the rules of LOAC.

Any person who takes part in hostilities without meeting the criteria listed above is considered to be a civilian taking direct part in hostilities (DPH).  They are not afforded combatant and POW protections and lose their civilian immunity from targeting by virtue of their direct participation.  The exact parameters of what amounts to DPH under international law and when such immunity is lost and regained is contested, but it is generally accepted that a civilian loses their civilian immunity when they engage in hostile acts in support of one party to the conflict, when those acts cause damage, injury, or death to another party to the conflict, or otherwise harm enemy military capacity.  For so long as the civilian carries out hostile acts, they will lose their immunity.  It should be noted that the loss of civilian immunity for those DPH is different to what happens for civilians taking part in hostilities as part of a resistance movement or levée en masse: once designated as resistance fighters or participants in a levée, one loses one’s civilian status and is considered a combatant (and therefore liable for targeting at any time by virtue of one’s status).  Civilians who are DPH however, do not lose their civilian status, only their immunity from targeting, and only for as long as they are DPH.  Civilian immunity can be regained on cessation of DPH.

Levée en masse

What then is the status of the varying civilians participating, either individually or in groups, in the conflict in Ukraine?  The first category that suggests itself is the levée en masse, where civilians spontaneously take up arms to resist an invader before occupation of their territory.  Key to the existence of a levée en masse are two elements.  First, there must be a degree of spontaneity.  For a levée to exist under LOAC it must originate among the people, rather than on the instigation of the authorities in the territory under threat of invasion, and by persons who have not had time to organise themselves into any sort of armed group.  Secondly, any armed resistance must occur in non-occupied territory – territory that has not been invaded and placed under the control of the invading force.

It might have been possible, at least for a brief period of time, for there to have been a levée en masse in the border regions of Ukraine.  Reports in the days leading up to the invasion spoke of Ukrainian citizens, on their own initiative, buying guns en masse and booking time at shooting ranges in anticipation of the invasion.  There have also been reports of solitary acts of resistance against the invaders, such as unarmed Ukrainian citizens using their bodies to block advancing tanks, or tearing down street signs to impede Russian forces as they navigate the Ukrainian countryside.

However, the rapidly changing facts on the ground seems to have largely eliminated the possibility of a levée en masse situation.  Within a day of Russian forces entering Ukrainian territory, Ukrainian authorities had taken to social media to encourage the citizenry to resist the invaders, going so far as to post video guides on how to make Molotov cocktails and how to engage in cyber-attacks against Russia.  The government has even handed out rifles to civilians.  This level of involvement on the part of the Ukrainian government would seem to preclude the existence of a levée en masse, by eliminating the ‘spontaneity’ element of a levée.

 An additional complication is that the Russian army has entered and occupied regions of Ukraine, including the area around Pripyat and the Chernobyl nuclear power plant.  Under the law on levée en masse, a levée can only lawfully exist before the territory has been occupied by the invading force – i.e., placed under the actual control and authority of the hostile army, where such authority can be established and exercised (under Article 42 of the 1907 Hague Regulations).   Occupation of parts of Ukraine would mean that a levée could not exist in those parts.  However, this does not preclude levées existing in parts of unoccupied territory in Ukraine.  Moreover, the seizure of part of Ukrainian territory by Russia may not meet the threshold requirements for the law of occupation to be applicable – it may merely be a temporary seizure of territory that is quickly reversed.  In any event, the involvement of the Ukrainian government in arming the citizenry would seem to be the relevant factor that prevents the situation from being clearly classified as that of a levée en masse.

An organised resistance movement

The most recent reports coming out of Ukraine instead suggest that what seems to be occurring is better quantifiable as an organised resistance movement (as outlined in Article 4A(2) of Geneva Convention III).  As noted in the New York Times on 27 February:

The newly armed civilians and members of various paramilitary groups are fighting under the loose command of the military in an organization called the Territorial Defense Forces.

“In the city itself, the territorial defense detachments are working quite effectively,” Mykhailo Podolyak, an adviser to the Ukrainian presidential chief of staff, said in a statement Saturday morning. “It turned out that people are coming out, defending their homes. It wasn’t expected by analysts of the Russian General Staff.”

At an army recruitment center where Kalashnikov rifles were being handed out, several dozen men milled about. Before receiving their guns, they were asked to form ad hoc units of about 10 men each and choose a commander, several of the men in line said.

One group was dressed in a motley assortment of sweatpants and camouflage jackets, some in tennis shoes and others in hiking boots. But they all bore yellow arm bands identifying them as members of the Territorial Defense Forces.

This news report identifies most of the elements of the requirement for lawful combatancy as already present.  First, mention that the people volunteering have been asked to form ad hoc units and choose a commander would fulfil the requirement that the resistance groups ‘belong to a Party to the conflict’ and be commanded by a person responsible for their subordinates.  As noted in the Commentary to Geneva Convention III, ‘[i]t is essential that there should be a de facto relationship between the resistance organization and the [subject of] international law which is in a state of war, but the existence of this relationship is sufficient. It may find expression merely by tacit agreement, if the operations are such as to indicate clearly for which side the resistance organization is fighting’.  This is clearly evidenced here, with the distribution of arms at recruitment centres and orders to form units with commanders. 

Additionally, the widespread wearing of yellow arm bands – the signifier of the Territorial Defence Force – and open carriage of rifles by volunteers also indicates compliance with Article 4A(2) – the wearing of a fixed distinctive sign visible at a distance and openly carrying arms.  What this means is that any member of the Territorial Defence Force, carrying arms openly, wearing a yellow armband, and conducting themselves in compliance with applicable LOAC, is entitled to combatant immunity, may actively participate in hostilities, and must be afforded POW protections if captured by Russian forces.

Civilians taking direct part in hostilities

However, what of those who resist the Russian forces without having volunteered with the Territorial Defence Force?  Their situation is far more precarious, as, depending on the acts they commit, they could be considered as civilians taking direct part in hostilities.  As noted above, civilians classified as DPH lose their immunity from targeting and may be targeted for as long as they are DPH: as the Commentary to the Additional Protocols puts it, ‘the immunity afforded individual civilians is subject to an overriding condition, namely, on their abstaining from all hostile acts. Hostile acts should be understood to be acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces.’  Across the various interpretations of DPH in case law and in practice, acts that are considered DPH range from operating weapons or weapons systems, collecting intelligence on the armed forces,  transporting munitions and personnel to and from hostilities, and/or engaging in acts of sabotage and disruption against materiel and communications.

By these standards, Ukrainian civilians tearing down street signs would likely not be considered as taking direct part but acting as voluntary human shields could be DPH (though there is some debate over whether human shields can ever be considered DPH – see further here, here, and here).  While direct participation in hostilities by civilians is not unlawful under international law, neither is it a protected act.  If Ukrainian civilians not part of the Territorial Defence Force participate in hostilities, such participation might be considered sufficiently direct to warrant targeting by Russian forces for as long as they were DPH.  If captured, any civilians DPH would not benefit from the expansive protections of Geneva Convention III. 

Current news reports indicate that, while Russian forces are advancing into the country, Ukrainian resistance, from the regular army and other volunteer and resistance forces, is fierce, and reportedly having some impact in impeding the advancing forces.  If it turns out that Russia is successful in its aim of overthrowing the Ukrainian government and occupying the state, those who continue to resist will not necessarily lose their protections under LOAC.  Provided such fighters continue to comply with the provisions of Article 4A, they will still enjoy combatant status and POW protections if captured.