By Laurie R. Blank*<\/p>\n
This is the final\u00a0article in a three-part series on the Ukrainian crisis’s\u00a0implications and lessons for the international law of armed conflict.\u00a0You can read Part 1<\/a> and Part 2<\/a> here.\u00a0<\/em><\/p>\n Recent events in eastern Ukraine highlight the challenges of identifying the groups involved. Pro-Russian separatists<\/a>, militants, pro-Ukrainian \u201cstreet fighters\u201d<\/a>, nationalists, terrorists \u2014 many terms have been used in media reports. Many such groups wear no identifying uniform and others have deliberately covered or removed <\/a>insignia that might shed light on their origins or loyalties. This m\u00e9lange of groups and contradictory information raises numerous questions: who is fighting, for what cause, against whom, and on whose behalf. These issues are central to determining whether the situation is an armed conflict and, if so, whether it is non-international or international.[1] A non-international armed conflict exists when there is protracted armed violence between a state and one or more organized armed groups. In certain circumstances, the involvement of a foreign state in that conflict can transform an otherwise non-international armed conflict into an international armed conflict: if the non-state armed group acts under the overall control of the foreign state, the conflict will be an international armed conflict.[2]<\/p>\n The challenge of identifying who is fighting also highlights how the fundamental principle of distinction operationalizes LOAC\u2019s core purpose: protecting civilians and others hors de combat during conflict. This principle obligates all parties to a conflict to distinguish between those who are fighting and those who are not. Article 48 <\/a>of Additional Protocol I sets forth the basic rule:<\/p>\n In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.<\/p>\n The obligation to distinguish is customary international law in both international and non-international armed conflicts, as the International Criminal Tribunal for the former Yugoslavia held in the Tadi\u0107 case.[3]<\/p>\n LOAC\u2019s framework transforms the spirit and purpose <\/a>of the principle of distinction into concrete obligations and protections, based on individuals\u2019 status and conduct. Combatants, as defined in the Third Geneva Convention, are members of the regular armed forces of a state in international armed conflict. Civilians include all persons who are not combatants or members of an organized armed group (and the latter are often called \u201cfighters\u201d).<\/p>\n Distinction is essential to LOAC implementation and compliance in three main areas: targeting, detention and accountability.<\/p>\n First, combatants are entitled to participate in hostilities and are legitimate targets of attack at all times. Others, such as members of organized groups and civilians directly participating in hostilities, are also legitimate targets \u2014 but it can be much harder to identify who they are. All others, such as civilians not directly participating in hostilities, POWs or other detainees, are protected from attack. Operationalizing distinction thus requires information about and an understanding of the different individuals and groups to help determine who is an innocent civilian deserving of protection and who is a hostile actor posing a legitimate threat. Inability or failure to do so means that more civilians will face suffering and harm.<\/p>\n Second, detention determinations and authority depend on the distinction between fighters and civilians, as well as among the many different types of civilians \u2014 some who are not involved at all, some who support armed groups, and some who fight with such groups. Members of regular armed forces or organized armed groups engaged in armed conflict can be detained without charge until the end of hostilities. LOAC permits the detention of civilians for imperative reasons of security, but such detention must end when the reason for the detention ends. Unlike detention of combatants or fighters, therefore, which is based on their membership in an opposing force, detention of a civilian must be based on an individualized determination of that individual\u2019s threat to security.<\/p>\n Finally, the identification and categorization of persons and property is essential to the accountability process as well, on two main levels: where an individual can or must be tried and the elements of crimes under LOAC. With regard to the former, combatants can only be tried in the same system provided for the prosecuting state\u2019s own forces, usually a court-martial. In the latter arena, grave breaches <\/a>of the Geneva Conventions and Additional Protocol I are crimes committed against persons protected by each of the Conventions and\/or the Protocol, such as willful killing of prisoners of war or protected persons. Notice, in particular, that grave breaches under Article 85(3) <\/a>of Additional Protocol I are nearly all violations of distinction, including \u201cmaking the civilian population or individual civilians the object of attack;\u201d \u201claunching an indiscriminate attack affecting the civilian population or civilian objects . . .;\u201d or \u201cmaking a person the object of attack in the knowledge that he is hors de combat.\u201d<\/p>\n Eastern Ukraine <\/a>demonstrates many of the challenges <\/a>for distinction that contemporary conflicts pose, due to the lack of boundaries between conflict areas and civilian areas, or between those actively participating in hostilities and those who are not. Armed groups multiply at a rapid pace, with little information about who a group supports and what role it plays. More problematically, it is difficult to determine who is part of an organized group and who is protecting a home or neighborhood; who is exploiting chaos for criminal gain; or whether a group of armed individuals is consolidating local authority or fighting on behalf of Ukraine, Russia or some other group. As a result<\/a>, \u201cthe boundaries separating peaceful citizens from terrorists and violent thugs [are] murky\u201d and, in areas where Ukrainian forces are operating, \u201cthere is a lot of confusion on the question of whom they\u2019re fighting.\u201d<\/p>\n Needless to say, this confusion as to who is fighting translates directly into enormous challenges for targeting decisions: is anyone a combatant? Who should be considered a member of an organized armed group and which groups are part of the conflict? And which civilians are participating in hostilities?<\/p>\n Detention is equally challenging: when detention decisions rest on the ability to distinguish between and among different groups and individuals, the complexity and uncertainty in eastern Ukraine can make such decisions extremely difficult.<\/p>\n Finally, if any forces in eastern Ukraine are combatants \u2014 meaning that 1) the conflict is an international armed conflict and 2) the individuals are members of the regular Russian armed forces or militia belonging to Russia that meet the four-part test <\/a>in Article 4 of the Third Geneva Convention \u2014 then Ukraine would need to prosecute such persons in the same forum it uses to prosecute its own soldiers. In addition, the nature of any LOAC crimes that can be charged depends almost entirely on the ability to distinguish and categorize the victims of such crimes as civilians, fighters, combatants, etc.<\/p>\n