On 10th of July during his stay in Kiev, while celebrating the twentieth anniversary of the signing of the Distinctive Partnership between NATO and Ukraine, NATO Secretary General Jens Stoltenberg delivered a speech, in which he called on Russia to withdraw its “thousands of soldiers from Ukraine and stop supporting the militants with command-and-control and military equipment.’’
The wording of the Secretary General’s speech is extremely enthralling for two reasons. Firstly, it boldly points out the presence of the Russian troops in the territory of Ukraine. Secondly, it emphasizes that Russian government is supporting rebels not only with military equipment but also with command-and control. These two points add crucial piece to the puzzle of the legal classification of the conflict in eastern Ukraine under International Humanitarian Law (IHL).
IHL is applicable provided that an armed conflict exists. Two types of conflicts can be distinguished under the IHL regime, namely international armed conflict (IAC) and non-international armed conflict ( NIAC). The legal documents providing sets of rules regulating an IAC and a NIAC are four 1949 Geneva Conventions (GCs), 1977 Additional Protocol I( AP I) and 1977 Additional Protocol II (AP II). Both Russia and Ukraine are parties to the all four GCs, AP I and AP II. In addition, States are bound by customary international humanitarian law applicable to international armed conflicts.
Under Common Article 2 of the GCs, an IAC is an armed conflict between two or more States. Provided that, Common Article 2 does not define the nature of the involvement necessary to give rise to an IAC between States, one has to look into interpretive texts and decisions of the judicial bodies. Without digressing, it can be concluded that there is a consensus as to what constitutes an IAC, as it has been held by the Appeals Chamber in Tadic “an armed conflict exists whenever there is a resort to armed force between States.’’ In other words, two key elements have to be met for an IAC to occur, namely: the resort to the armed force and involvement of two States. The jurisprudence of relevant, international judicial bodies, together with academic literature seem to concur that for the purpose of the Common Article 2 there is no intensity requirement in regards to resort to the armed force.
In order to examine whether Common Article 2 is applicable to the hostilities in eastern Ukraine, one has to analyse the available factual information. Jens Stoltenberg’s statement appears to be in line with numerous claims by Ukraine stating that Russian soldiers were and are participating in the hostilities in eastern Ukraine. However, Russia denies these allegations, claiming that there are no regular Russian troops in Ukraine. These denials seem to be contrary to reports of Ukrainian armed forces, in which they claimed that they have captured Russian soldiers on the territory of Ukraine. Additionally, there are sources claiming that many Russian soldiers have died in eastern Ukraine, while taking part in armed hostilities. Furthermore, respected NGOs such as Amnesty International and Atlantic Council and investigative search network Bellingcat published reports which include satellite imagery and analysis illustrating the presence, movement and participation of Russian troops in hostilities in eastern Ukraine. Based on all these factors combined, one can argued that since July 2014 there has been an IAC between Ukraine and Russia within the Common Article 2 of the GCs. Two requirements for the occurrence an IAC seems to be met.
From the gathered reports it appears that Russian troops are actively fighting with Ukrainian armed forces. Therefore, it can be concluded that there is a resort to force between two States.
Common Article 2 applies regardless of Russia’s repetitive denial, given that the Article clearly provides that an IAC can exist “even if the state of war is not recognized by one of them.” This conclusion is supported by reports of Amnesty International, Atlantic Council,The Rule of Law in Armed Conflicts project and the The Office of the Prosecutor of the International Criminal Court.
Given the complex nature of the hostilities in eastern Ukraine and presence of not only regular Russian forces but also pro-Russian rebels and volunteers one has to examine if the military activities in eastern Ukraine could be classified as a NIAC within the meaning of the Common Article 3 of GCs. There seems to be consensus that IAC can coexist with NIAC on the same territory.
Common Article 3, which does not provide a definition, refers to a ‘’conflict not of an international character’’.The definition of NIAC was provided by the ICTY in Tadic, where the Court held that NIAC exists when there is ‘’protracted armed violence between government authorities and organized armed groups or between such groups within a State.’’ The definition established by ICTY is now regarded as one of the authoritative character.
Throughout the years various judicial bodies have clarified that for NIAC to occur two core elements have to be satisfied. Firstly, the protracted armed violence with certain degree of intensity has to take place. Secondly, the actors taking part in protracted armed violence must exhibit a certain degree of organization.
In Haradinaj, the ICTY provided the non-exhaustive list of qualifications which have to be taken under consideration when examining whether armed violence has reached a sufficient level of intensity to be seen as a NIAC. These include, among others: the number, duration and intensity of individual confrontations; the type of military equipment used and the number of casualties. The Trial Chamber in Haradinaj also offered the list of conditions for determining whether the non-State armed group is sufficiently organized to fall within the definition of a NIAC. These include, inter alia: the existence of a command structure within the group and the ability of the group to gain access to weapons.
Given the fact the hostilities in Ukraine has continued for substantive period of time in effect of which high number of victims has been reported ( the UN report indicates that the number of casualties escalates around 10.000) together with a heavy weapons usage by both sides, seems to satisfy the requirement of intensity necessary to establish the existence of protracted armed violence.
In regards to the second condition, there are number of reports which provide that the pro-Russian rebels call themselves United Armed Forces of Novorossiya (UAFN) and have a hierarchical structure in which commanding officers give orders to the fighters. Furthermore, the reports present the detailed lists of weapons acquired by rebels. It appears to indicate that the degree of organization of the armed group for the purpose of the Common Article 3 has been met. Therefore, it can be concluded that both requirements for the application of the Common Article 3 are fulfilled and a NIAC is taking place in Ukraine, parallel to an IAC.
However, given that the Common Article 3 offers only a limited legal regime for a NIAC, the applicability of the AP II would be desired for both parties to the conflict.The AP II provides a more complex set of rules regulating NIAC, but simultaneously requires higher threshold for its application than Common Article 3. Article 1 of the Protocol states that for the applicability of the AP II conflict has to arise between government armed forces and organized armed groups. The key distinction to Common Article 3 is that AP II requires armed groups to “exercise such control over a part of its territory [the State concerned] as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” As for today, 21st of July the pro-Russian rebels control over 450km2 of the territory of the Ukraine.Therefore, the requirement of the control over a part of the territory of the State stipulated by Article 1 of the AP II has been met. Provided that Ukraine is party to the Protocol, the AP II should apply.
To conclude, the paper argues that the current situation in eastern Ukraine should be classified as an IAC between Ukraine and Russia within the meaning of the Common Article 2 of the GCs. Furthermore, parallel to an IAC, a NIAC exists between Ukrainian government forces and the UAFN within the scope of Common Article 3 of the GCs and AP II.
The last remaining element of the classification of the armed hostilities in eastern Ukraine, would be to analyse whether an ‘internationalized’ armed conflict is taking place. One could argue that because of the Russia support, the actions of insurgents in eastern Ukraine could be attributed to Kremlin, which in turn could internationalize existing NIAC. However, given that one agrees with the findings of that paper, the question of internationalization of NIAC in eastern Ukraine becomes a secondary issue. Nevertheless, due to the personal interest of the author in the concept of proxy wars, the next publication will analyse whether military actions of rebels in eastern Ukraine can be attributed to Russia.