Discussions of the status of persons in armed conflict over the past two decades have centered on the paucity of rules for such categorizations and difficult questions of detention authority, treatment obligations, distinction, and identification of members of organized armed groups in non-international armed conflict. International armed conflicts, in which treaty provisions clearly delineate between combatants and civilians and set forth comprehensive rules for their obligations, rights, protections and treatment, have been infrequent and generally the stuff of Second World War cases and stories. The current conflict between Russia and Ukraine, however, is offering a fresh look at some of “the classics.”
In international armed conflict, combatants include members of the regular armed forces, members of volunteer militia and resistance forces meeting certain specified criteria, members of the armed forces of a State not recognized by the detaining power, and civilians forming a levée en masse (other posts in this symposium address legal issues relevant to these categories here and here). Combatants enjoy important privileges under the law of armed conflict, including prisoner of war status if captured and combatant immunity against domestic prosecution for lawful belligerent acts during wartime. These privileges, however, are just that—privileges that can be lost if a combatant fails to comply with the requisite obligations of lawful combatant status. Reported incidents from the fighting in Ukraine in the first few days of the conflict highlighted both sides of this balance: the essential protections for combatants and the consequences of combatants’ failure to uphold their obligations.
Combatant Privileges: Fighting in the Enemy’s Uniform?
Military uniforms have particular significance in the law of armed conflict. The uniform, or other fixed distinctive sign, is a fundamental aspect of combatant status and critical to the implementation of the principle of distinction. Combatants who discard their uniforms and fight in civilian clothing lose their entitlement to prisoner of war status, combatant immunity, and other privileges of lawful combatant status (see Quirin and Krofan, for example). But what about fighting in the enemy’s uniform?
News from the second day of the conflict in Ukraine included reports of Russian soldiers in captured Ukrainian military vehicles and wearing Ukrainian military uniforms, driving towards Kyiv. Soldiers might don the enemy’s uniform for multiple operational reasons—intelligence collection, protection from discovery and attack, spying, or sabotage and other attacks, for example. Examples from the Second World War include German parachute troops allegedly wearing Belgian or Dutch uniforms when landing behind enemy lines or German troops in British and United States uniforms sowing confusion during the Battle of the Bulge (the Otto Skorzeny case).
The law applicable in international armed conflict forbids “mak[ing] improper use of … the military insignia and uniform of the enemy …” (Art. 23(f) of the Hague Regulations of 1899 and 1907; Art. 39 of Additional Protocol I; Art. 8(2)(b)(vii) of the Rome Statute of the International Criminal Court). Not all uses of enemy uniforms are prohibited therefore; only “improper” uses. For example, wearing enemy uniforms in order to flee the fighting or escape capture does not run afoul of the law (U.S. Department of Defense Law of War Manual § 5.23.1.4). On the other side of the spectrum, engaging in attacks while wearing the uniform of the enemy is flatly prohibited, as affirmed in the treaty law and numerous military manuals (see here, here and here, for example), and is a war crime under the Rome Statute.
In between these two clear poles, however, the legal analysis depends on the nature of the acts or intended acts while in enemy uniform and, equally important, whether the conflict is governed by Additional Protocol I to the 1949 Geneva Conventions. In the case of the conflict in Ukraine, both Russia and Ukraine are parties to AP I, so the rule in Article 39(2) of AP I applies to the conduct of the Russian soldiers in the relevant reports. AP I expands the concept of improper use beyond the use of enemy uniforms while engaging in attacks and further prohibits such use “in order to shield, favour, protect or impede military operations.” A broad reading of this provision excludes any use of enemy military uniforms in the context of actual military operations (see UK Law of War Manual § 5.11.1 and Sweden’s IHL Manual). Indeed, the Commentary to Article 39(2) of AP I explains that the provision covers attacks “in all situations directly related to military operations,” and therefore “put an end to the longstanding uncertainty arising from … the imprecise text of The Hague [Conventions] and from unclear customary law.”
Most notably, a straightforward reading of Russia’s own military manual would preclude any such use of enemy military uniforms. Its 2001 Regulations on the Application of IHL provides that “[w]hen organizing and conducting cover and concealment of military objectives it is prohibited to make use of … the flags, military emblems and uniforms of the enemy.” Russian soldiers wearing Ukrainian military uniforms and driving Ukrainian military vehicles into combat areas to participate in any manner in military operations therefore violates the law of armed conflict applicable to this conflict.
Combatant Protections: Photos of POWs?
Enshrined in the Third Geneva Convention, protections for prisoners of war have a long history and are among the most fundamental rules of the law of armed conflict. Although it does not appear that either side in the conflict has captured sizeable numbers of adversary forces and established formal prisoner of war facilities, such large-scale and formal detention operations are not necessary to trigger the application of these key protections. For example, consider the Russian soldiers captured on the first day of the conflict—who we know about because the Ukrainian Ministry of Defence tweeted out their photos that afternoon. The pictures did not show the Russian soldiers suffering any hardship or harm, but did the very publication of those photos violate the law? More recently, news reports reveal that the Ukrainian military is posting photos of captured Russian soldiers, ostensibly to allow Russians “to determine whether the images feature a loved one” and as part of an information campaign to “alert Russians to a devastating war the Kremlin has sought to conceal.”
As soon as a party to an international armed conflict captures or receives the surrender of a combatant from the opposing State adversary, that individual is a prisoner of war and entitled to the full protections of the Third Geneva Convention. The key language in Article 4 of that treaty is “fallen into the power of the enemy,” which encompasses any situation in which “the Detaining Power exercises some level of physical control or restraint over the person, and … the person is no longer willing or able to participate in hostilities or defend themselves.” (GC III 2020 Commentary). Soldiers captured by opposing soldiers or units are prisoners of war as of that moment—no formal processing or other procedures are required.
A core theme of the protections for prisoners of war is the preservation of human dignity. In essence, even though an individual fights for the opposing side in the armed conflict, she retains her human dignity and entitlement to humane treatment at all times. In addition to protections obligating the detaining power to provide appropriate shelter, food, medical care, and protection from hostilities, Article 13 of the Third Geneva Convention mandates that “prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.” (emphasis added). This prohibition extends to the dissemination of photographs, video recordings or images, or any other personal data, such as the photos of the Russian soldiers tweeted and posted online.
Public dissemination of photos or other visual evidence can cause humiliation and potentially put the prisoners of war or their families at risk during their detention or after their release. Although pictures of captured soldiers can demonstrate that they are alive and safe, provide a record of who has captured and retained custody over them, or serve as evidence in war crimes prosecutions and other accountability mechanism, the Third Geneva Convention sets out a bright line rule. In effect, the law places protection and human dignity above any other considerations and brooks no compromise in pursuit of those goals.
Conclusion: Reminders and Reaffirmations
Combatant privileges and protections stem from the law of war’s ancient foundations: good faith, honor, and human dignity. In the midst of the deadly violence in Ukraine, these incidents serve as important reminders of the fundamental goals of minimizing suffering and protecting all persons during armed conflict.
*In discussing these incidents and the law of war issues they spotlight, it is important to recognize that reports from the conflict are unconfirmed and may include false or incomplete information.
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Professor Laurie Blankis a Clinical Professor of Law, the Director of the Center for International and Comparative Law, and the Director of the International Humanitarian Law Clinic at Emory University School of Law.
