Ukraine’s Crisis Part 2: LOAC’s Threshold for International Armed Conflict

Series Introduction 

Following a new outbreak of violence in eastern Ukraine on Thursday, tensions in Ukraine and between Russia and the United States and NATO countries are high ahead of Ukraine’s presidential elections Sunday. Russian troops remain along Ukraine’s eastern border, notwithstanding Moscow’s promise of withdrawal.

In this murky situation, however, it is crucial to rely on several foundational principles of international law to protect persons, sovereignty, and national security. The conflict in Ukraine demonstrates the importance of sustaining the strict separation between the law of armed conflict (LOAC) and the jus ad bellum, a low threshold for recognition of international armed conflict, and the principle of distinction in today’s conflicts.

The following series by Laurie R. Blank will explore each of these points in detail.

 

LOAC’s Threshold for International Armed Conflict

Part 1 of the series is available here, and Part 3 can be read here.  

Unlike the latest reports from eastern Ukraine, the situation in Crimea involved very little kinetic violence. Beyond a few isolated incidents, Russian and Ukrainian military forces did not engage directly in hostilities. There is little doubt that if Russian and Ukrainian forces had engaged — or do engage — in active hostilities, LOAC would apply to any and all such actions.

Nonetheless, LOAC applied to the situation in Crimea from the moment Russian forces entered Ukrainian territory without Ukraine’s consent. This may seem counter-intuitive in the absence of fighting and in light of reports that Ukrainian soldiers were unarmed in most confrontations. However, the immediate application of LOAC upon any dispute between states leading to the engagement of their armed forces is fundamental to LOAC’s core purposes and effectiveness.

Arguments by the Axis powers during World War II regarding the inapplicability of LOAC highlighted the need for a de facto definition of armed conflict. For example, the Japanese claimed that LOAC did not govern their operations in China and Manchuria because they were merely “police operations” or “incidents,” an argument the International Military Tribunal for the Far East roundly rejected. Hitler took a different tack, ordering that LOAC did not govern the war between Germany and the Soviet Union because the Soviet Union had no legitimate claim to the reciprocity at the heart of LOAC. Both examples show how “law avoidance” undermined the application of LOAC.

Common Article 2 to the four 1949 Geneva Conventions therefore statesthat the Conventions “apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” No matter how short-lived or minor, any hostilities between the armed forces of two states constitute an international armed conflict, even if one or both states deny there is a conflict.

Similarly, any partial or total occupation triggers the Geneva Conventions, even if the occupation meets no armed resistance or the occupying state denies the occupation. Thus, Common Article 2 “refers to cases where the occupation has taken place without a declaration of war and without hostilities, and makes provisions for the entry into force of the Convention in those particular circumstances.”  As the Commentary notes, “[i]n such cases the interests of protected persons are, of course, just as deserving of protection as when the occupation is carried out by force.”

The threshold for international armed conflict is designed to maximize LOAC’s protective purposes. Once Russian forces entered Ukrainian territory, the need for LOAC’s protective framework became evident. If Russian forces detained Ukrainian soldiers – or vice versa – those detained would need LOAC’s protections with regard to treatment, repatriation or other rights.  Thus, the Iranian detention of fifteen British sailors in March 2007 triggered the law of international armed conflict, regardless of whether the two countries recognized or denied the existence of an armed conflict. As the Commentary to the Third Geneva Convention explains, the de facto situation governs the recognition of conflict, not the attitudes of the parties involved: “It makes no difference how long the conflict lasts, how much slaughter takes place or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4 [of the Third Geneva Convention].”[1]

The low threshold for LOAC’s application in international armed conflict helps ensure there are no gaps in legal protection, guarding against situations in which “no law governs the conduct of military operations below that level of intensity, including the opening phase of hostilities.”[2] For example, when Syrian forces shot down U.S. Navy Lt. Bobby Goodman while he was flying a mission over the Bekaa Valley in Lebanon in 1983, the United States demanded that Syria treat him as a prisoner of war. Although the mission was brief, the recognition of the engagement between U.S. and Syrian forces as an armed conflict was essential to Lt. Goodman’s protections while in Syrian hands.

Precluding LOAC’s application in Crimea until there was sustained fighting between Ukrainian and Russian forces thus would exclude situations where LOAC’s protective purposes are needed.  Indeed, when two states are in conflict, there may be no mechanisms for individuals in one state to seek redress or protection from the other in the absence of LOAC applying.  Even if, for example, Russia had human rights obligations to Ukrainians through extraterritorial application of human rights law (a theory the United States disputes), it is unclear how Ukrainians could actually enforce those rights if detained or otherwise subject to Russian control. LOAC is what ensures that foundational level of protection.

The discourse about distinguishing between conflict (LOAC applies) and non-conflict situations (human rights or law enforcement paradigm governs) currently centers on the risks of an overly generous recognition of conflict and application of LOAC. Without a doubt, applying LOAC is consequential: it authorizes the use of lethal force against the enemy as a first resort and the detention of enemy personnel without charge until the end of hostilities. Such authority is fundamentally at odds with peacetime authority and, if applied in situations not rising to the level of armed conflict, is highly problematic and dangerous.

Faced with these consequences of LOAC application and spurred by the higher threshold for non-international armed conflict, some now argue that international armed conflict requires some level of intensity to trigger LOAC. However, nothing in the Geneva Conventions, the Commentary or international jurisprudence supports such an analysis.  Allowing concerns about the eagerness of states to use armed conflict tools against terrorist groups to inappropriately constrain LOAC’s application in state-on-state conflict risks perverting LOAC’s core purposes and unduly limiting its fundamental protections for all persons in conflict situations.  Introducing an intensity requirement (or other legalistic formula, such as an overly technical application of intensity and organization to non-international armed conflict) severs the connection between LOAC’s trigger and LOAC’s purposes, undermining the law’s very ability to do what it was designed to do.

A hesitance to recognize armed conflict often stems from humanitarian instincts, of course.   The law demonstrates, however, that international armed conflict’s low threshold rests on, and enables fulfillment of, those very humanitarian purposes and goals.

——————

[1] Int’l Comm. Red Cross, Commentary on the Geneva Convention (III) Relative to the Treatment of Prisoners of War 21 (Oscar M. Uhler & Henri Coursier eds., 1958).  See also H.-P. Gasser, International Humanitarian Law: an Introduction, in Humanity for All: the International Committee of the Red Cross and Red Crescent Movement 24 (Henri Dunant Institute, Geneva, 1993) (“as soon as the armed forces of one State find themselves with wounded or surrendering members of the armed forces of another State on their hands, as soon as they detain prisoners or have actual control over a part of the territory of the enemy State, then they must comply with the relevant convention.”).

[2] Dapo Akande, “Classification of Armed Conflicts: Relevant Legal Concepts,” in International Law and the Classification of Conflicts 32, 41 (Elizabeth Wilmshurst, ed. 2102).