In the weeks before Ukraine’s counteroffensive – and as Ukraine’s military activity in Russian-occupied areas of its country increased in intensity – there have been reports of attacks on the other side of the border directed against Russian targets.
Ground raids in the Belgorod region of Russia, adjacent to the north-eastern frontier of Ukraine, appear to have upped the ante. Until relatively recently, virtually all Russian combat operations had been conducted on Ukrainian territory. Now Russian units must also be diverted to face their enemies on their own soil.
These operations have not been conducted by the regular armed forces of Ukraine, but by various non-state armed groups, for whom Kyiv has denied all responsibility.
This combination of factors is unusual in situations of international armed conflict between sovereign states. It creates legal complications in international humanitarian law (IHL) that will be difficult to untangle unless responsibility for the operations can be definitively attributed.
Who is involved
The incursions have been carried out, according to Ukrainian officials, by two separate groups of Russian citizens. These are the Freedom of Russia Legion (FRL) and the Russian Volunteer Corps (RVC).
Read more: Ukraine war: what we know so far about reports of battles being fought across the border in Russia
The FRL fights alongside the Ukrainian Armed Forces and claims to be under the latter’s command. This would make it part of the International Legion of Territorial Defence of Ukraine, a volunteer force made up of fighters from as many as 50 countries who answered Ukraine’s appeal for assistance.
The Ukrainian government’s recruitment website says that: “A foreigner between the ages of 18 and 60 who has combat experience and no criminal record can join the ranks of the defenders of Ukraine.” It is, therefore, a regularly constituted formation of the Ukrainian Armed Forces (UAF).
The RVC, on the other hand, is a far-right Russian ethno-nationalist group. Its status is unclear when it comes to the group’s relationship with Ukraine’s military command and control. It claims to be operating completely independently of Ukrainian control.
Russia, predictably, dismisses both groups as “saboteurs”, “terrorists” and “militants”.
Involvement of non-state actors in armed conflicts is nothing new. But their activities raise two important legal questions. What is their legal status under IHL, and who is legally responsible for them? The answers to these questions determine whether captured fighters are protected under IHL, and who will be held accountable for their actions.
Irregular fighters and international law
The participation of irregular units in armed conflict has been a persistent feature of warfare since at least the Peninsular War (1808-1814). Spanish guerrillas – the origin of the use of the term in English – systematically harassed and attacked the French forces occupying most of Spain in support of the regime of King Joseph Bonaparte. Their guerrilla warfare was separate from the field battles in which the regular Spanish army confronted the French.
The development of international law to reflect this reality of modern warfare was further spurred by the French use of francs-tireurs (literally, “free-shooters”) in occupied areas of north-eastern France during the Franco-Prussian war (1870-1871). In the second Anglo-Boer war (1899-1902), meanwhile, the entire army of the Boer republics consisted of irregular farmers who were mobilised into kommandos to resist the British invasion.
The result was the provisions of The Hague Regulations for the Conduct of Warfare on Land (annexed to Convention II of 1899 and updated in Convention IV of 1907). Article 1 defines lawful combatants as being the regular state armed forces plus (this was the innovative bit) members of “militia and volunteer corps” who satisfied four requirements:
- Being under responsible command;
- Having a fixed distinctive emblem recognisable at a distance;
- Carrying arms openly; and
- Conducting operations ‘in accordance with the laws and customs of war’.
These requirements were subsequently incorporated into Article 4 of 1949 Geneva Convention III. This defines entitlement after capture to the rights and protections of prisoners of war (POWs). It was drafted as a direct result of the second world war.
A notable feature of that conflict had been the activities of armed resistance movements in occupied territory. These groups – such as the Maquis, or French resistance – were invariably condemned by the Germans as saboteurs (which usually led to their torture and execution). But they were regarded by Britain and her allies as legitimate representatives of their respective governments-in-exile. This made them lawful combatants entitled to POW status.
Sabotage is permitted under IHL “provided the legal rules for the choice of targets and the methods and means employed are respected”. It must be carried out by “combatants” – that is, members of armed forces or recognised resistance groups, or citizens considered to be legitimately taking up arms to defend themselves against an invasion.
Kyiv’s denials of responsibility for the FRL are undermined by the fact that the group took Russian soldiers as POWs, then handed them over to the Ukrainian authorities. And if the FRL has been incorporated into the Ukrainian Foreign Legion, as has been reported, its fighters should be considered part of the Ukrainian armed forces. Because they come under the IHL definition of combatants, they should be protected from being treated as saboteurs after capture, which carries a heavy penalty under Russian law.
In contrast, if the RVC is not operating under the overall command and control of the Ukrainian military, its members run a greater risk of being punished after capture under Russian domestic law, either as saboteurs or as civilians directly participating in hostilities.
Quite apart from the contributions of these units to an appearance of escalation in the conflict, it is possible that their true significance lies in their ability to distract the Russian military. Staging combat operations on Russian territory inevitably affects Russian morale, and could encourage the Russian military to divert much-needed troops away from the frontlines of the Ukrainian counteroffensive.