10 Mar SPECIAL FORCES, UNPRIVILEGED BELLIGERENCY, AND THE WAR IN THE SHADOWS
Read full article on Westpoint.edu Articles of War
The February 24, 2022 invasion of Ukraine resulted in news reports of fear in the streets of Kyiv as Ukrainian forces engaged in “a frantic hunt for spies and traitors,” as well as saboteurs and teams seeking to kill President Zelensky and 23 other leaders within Ukraine. Russian forces are reported to have included special forces troops (in U.S. terminology: Special Operations Forces), as well as private militia from the Wagner Group. In addition to Russians being found in civilian clothes it is alleged that special forces may have also donned Ukrainian military uniforms, and used captured Ukrainian and Organization for Security and Cooperation in Europe vehicles to mask operations.
The Role of Special Forces
The use of such forces and tactics should come as no surprise. A February 15, 2022 Royal United Services Institute report, The Plot to Destroy Ukraine, identified that Russian covert services “the Federal Security Service (FSB), Foreign Intelligence Service (SVR), and Military Intelligence (GU) and Special Forces (SSO) … are already operating throughout Ukraine” (p. 8). Ukraine had assessed there were two companies of Russian covert forces in Kyiv, and “Russian agent provocateurs—disguised as demonstrators or police officers—will initiate acts of violence.” Sabotage and cyber attacks on critical infrastructure as well as “a decapitation strategy” were expected (pp. 11-12). In this respect the 1979 Spetsnaz decapitation operation (Operation Storm 333) in Kabul of an allied leader highlights Russian willingness to use special military and paramilitary units to carry out such a strike (see Mark Galeotti, Spetsnaz: Russia’s Special Forces 20-22 (2015)).
Ukraine also employs military special forces units as part of its defence intelligence structure. It is reported that intelligence officers and agents are calling in air strikes on Russian convoys. The Security Service of Ukraine-SSU (e.g., the Alpha unit) is specifically tasked with “[c]ountering illegal armed groups, terrorists organizations and intelligence and sabotage groups of foreign states.” A Ukrainian government website that is no longer accessible had reported on February 27, 2022 that “SSU officers are performing combat missions with other military units, as well as carrying out their classic counterintelligence functions.” Further, it is highly likely that Ukrainian military and intelligence specialized units would be tasked with providing support and guidance to any armed resistance groups operating in areas occupied by the invading Russian forces.
Contrary to the view that inter-State warfare solely involves conventional military forces, contemporary conflict frequently involves the widespread use of non-conventional or irregular forces. Special forces engagement in clandestine or covert operations is not unique to this conflict. That a wide variety of special forces and intelligence units can be involved finds its genesis in the array of specialized military and paramilitary units developed during the Second World War to carry out a range of operations from direct action to support for resistance movements in occupied territory (e.g., British SOE, U.S. OSS, Russian Partisans).
The development and deployment of such units was a prevalent part of Cold War conflict and has expanded in the post 9/11 period. The result is that there can be an array of military, paramilitary, intelligence and even law enforcement specialized forces engaged in hostilities both overtly and behind enemy lines. Some of those activities may be carried out in civilian clothes or in enemy uniforms, and not all personnel involved may be incorporated into the armed forces of the Parties to the conflict.
International Legal Considerations
This inevitably raises questions whether such participation is contrary to international law, the status of its participants, and what accountability mechanisms may be applied. The unconventional nature of such operations raises important questions about whether those involved are lawful combatants or unprivileged belligerents not entitled to prisoner of war (POW) status, and whether some of their activities constitute crimes under international or domestic law.
As discussed in greater detail here, participation in such shadow warfare appears prima facie to be the antithesis of the open style of warfare that underpinned the 1907 Hague Land Warfare Regulations (Articles 1 and 2) criteria for lawful belligerents and which forms the basis for POW status set out in Article 4 of the 1949 Third Geneva Convention (GC III) as further supplemented by Additional Protocol I (AP I) (see Articles 43 and 44). Regarding status, in his seminal article, So-called ‘Unprivileged Belligerency’: Spies, Guerrillas, and Saboteurs (p. 328), Richard Baxter defined unprivileged belligerents as “persons who are not entitled to treatment either as peaceful civilians or as prisoners of war by reason of the fact that they have engaged in hostile conduct without meeting the qualifications established by Article 4 of the Geneva Prisoners of War Convention of 1949.” Unprivileged belligerents can include both civilians and members of a State’s armed forces.
The present hostilities are part of an international armed conflict reflecting an expansion of the hostilities commenced in 2014 with the Russian takeover of Crimea. It is a war involving States Parties to the 1949 Geneva Conventions and AP I, as well as bound by customary international humanitarian law. The separation of belligerents from those not engaged in combat reflects the principle of distinction, which is recognized as an intransgressible principle of international customary law (see the 1996 Nuclear Weapons Case, paras. 78 and 79) and is reinforced in AP I, Article 48. International law has developed a carrot-and-stick approach towards lawful combatant status. It rewards those who distinguish themselves from the civilian population by meeting certain conditions that are largely focused on encouraging the overt conduct of hostilities, while denying POW status and possibly prosecuting those who do not.
The initial effort to codify lawful belligerency in the 1907 Hague Regulations highlighted a fundamental disagreement. Dominant States with universal service championed recognition for large uniformed traditional armed forces while “patriotic” States concerned about being invaded who relied on a spontaneous resistance to an invader advocated for a more inclusive framework. The result was a compromise providing lawful status for regular armed forces, militia, and volunteers fighting for States; and protection for the levée on masse comprised of civilians in non-occupied territory carrying arms openly who spontaneously acted to thwart an invasion. While not all States agreed with the outcome, the compromise did not provide lawful status to civilians carrying out an insurgency within occupied territory.
The four basic criteria of lawful belligerency for military forces fighting for States are reflected in Article 1 of the 1907 Hague Regulations including: acting under responsible command; having a fixed distinctive sign recognizable at a distance; carrying arms openly; and conducting operations in accordance with the laws and customs of war. In its 2020 GC III Commentary the ICRC sets out various interpretations of how POW status is attained including one that suggests since Article 4A(1) of GC III did not specifically refer to these four conditions, they did not apply to State armed forces (para. 1033). However, those conditions would continue to be applicable to other militias, volunteer corps, or organized resistance movements belonging to that same State (Article 4A(2)). An earlier article in this series has suggested this is a “more reasonable approach.” This issue requires further analysis as that interpretation appears to place too much reliance on a strictly textual approach.
The ICRC itself takes the view that the four conditions are “obligations” for regular armed forces, although not collective conditions for POW status (2020 GC III Commentary, para. 1038). Setting aside the issue of the collective denial of POW status, which the ICRC indicates has rarely happened during international armed conflict (para. 1035), there is little to support the view these conditions are not required to be followed by regular armed forces, as well as the other units and groups fighting on behalf of the same State. This requirement is set out in the majority of academic writing, caselaw (e.g. 1942 Quirin Case, U.S Supreme Court; 1967 Krofan Stanislaus v. Public Prosecutor, Malaysian Federal Court; 1968 Mohamed Ali v. Public Prosecutor, U.K. Privy Council, 2002 Lindh Case, U.S. District Court), State approaches, the ICRC’s own 1960 Pictet Commentary (pp. 48, 52, and 62-63), and the long history of lawful combatancy. Further, AP I, article 43 has defined armed forces broadly as “all organized armed forces, groups and units” under a command responsible to a Party to the conflict. As Jens Olin notes under AP I the requirements of distinction and carrying arms openly applies to all combatants and not just militias and volunteer forces.
The U.S. DoD Law of War Manual (para. 4.6.1.3 and footnote 153) recognizes the textual difference in articles 4A(1) and 4A(2) indicating that combatant status is attained by virtue of membership in the armed forces of a State. However, it also states the four conditions reflect the attributes of States’ armed forces, those failing to systematically distinguish themselves from civilians or conduct its operations in accordance with the law of war can expect to be denied combatant privileges, and “members of the armed forces engaged in spying or sabotage forfeit their entitlement to the privileges of combatant status if captured while engaged in those activities.” This means that if Russia and Ukraine want to guarantee their regular armed forces, including the special forces, are viewed as lawful combatants they should continue to meet all the conditions for combatancy.
Given Russia’s increasing occupation of Ukrainian territory, the widespread use of organized resistance movements in occupied territory during the Second World War also becomes significant. That reality resulted in incremental efforts to expand combatant status. Such groups were made eligible for POW status if they met the recognized conditions of combatancy including wearing distinctive signs and carrying arms openly (article 4A(2), GC III). Unfortunately, this provision has also been widely viewed as unrealistic given the normal operational environment within occupied territory. However, the prevalence of irregular warfare during the Cold War led to a reduction of the conditions for lawful combatancy in limited circumstances as set out in AP I article 44(3). As a result, where due to the nature of the hostilities (accepted as including occupied territory) armed combatants cannot distinguish themselves they retain lawful status if arms are carried openly during each military engagement and during the time visible to the enemy while deploying preceding to an attack.
Consequences of Not Wearing Uniforms
Notably any combatants who fails to meet this requirement forfeits their right to be a POW (AP I, Article 44(4)). That State armed forces, frequently special forces, may be engaged in such operations is acknowledged in Article 44(7), which indicates these special provisions do not alter the “generally accepted practice” of regular forces wearing uniforms. Both Russia and the Ukraine are bound by these provisions. That said the challenge for all States and courts in assessing combatant status is there is little guidance, or common understanding of what criteria such as “distinctive signs recognizable at a distance,” “carrying arms openly,” or in the case of the AP I, what the deployment provisions mean. That some Ukrainian irregular forces appear to be wearing yellow arm bands suggests there is a recognition of the need to apply these basic conditions of combatancy.
The impact of failing to qualify as a privileged belligerent has changed somewhat in the aftermath of Second World War. The 1942 Quirin Case had indicated they were punishable under the laws of war. By 1950 The Hostages Case, although still indicating unlawful belligerents were war criminals, signaled a subtle change by identifying such a belligerent as someone who may render great service to their own country, but who may be seen as a war criminal by the enemy (p. 1245). Notably, both these cases equated unlawful belligerency to spying, a theme relied upon by Richard Baxter to suggest such belligerency was not unlawful but rather “unprivileged.” Like spies, unprivileged belligerents should not be considered as acting contrary to international law. Rather they are not privileged by it. They could be denied POW status and be prosecuted under domestic criminal laws. The denial of POW status to spies based on their clandestine activities is reflected in AP I, Article 46. The related approach of “unprivileged belligerents” being punishable under domestic law has gained wide acceptance (see 2019 U.S. Army Commander’s Handbook on the Law of Land Warfare, para. 1-74).
As with spies, unprivileged belligerents wearing civilian clothes or even enemy uniforms is not in itself unlawful under international law. However, such activity can make the unprivileged belligerent more likely to be found in breach of specific provisions of international humanitarian law. Given the reports of Russian special forces operating in civilian clothes, as well as the use of Ukrainian uniforms, and Ukrainian military and OSCE vehicles further investigation is warranted. Considering the reported Russian decapitation strategy, the targeting of Ukrainian leaders raises concerns regarding the unlawful killing of civilians, and the perfidious killing, injuring or capture of Ukrainian military personnel and civilians who are taking a direct part in hostilities (AP I, Article 37). Consideration would also have to be given to whether there has been an improper use of flags, military emblems, insignia, or uniforms of neutral or other States (AP I, Article 39(1)); and the use of flags, emblems, insignia, or uniforms of an adverse party while engaging in attacks or shielding, favoring, protecting, or impeding military action (AP I, Article 39(2)).
Notably AP I, Article 47 denies POW status to mercenaries raising questions regarding the status of Wagner Group personnel, as well as foreign volunteers reported to potentially include former special forces personnel being enrolled in the International Legion for the Territorial Defense of Ukraine. However, the definition of mercenary is very technical, and it is likely their combatant status will hinge on whether those groups are part of the armed forces, as well as compliance with the conditions for privileged belligerent status. Lawful combatant status for Russian and Ukrainian intelligence paramilitary and law enforcement agencies engaged in hostilities would also depend upon their being incorporated into the armed forces of those States (AP I Article 43(3)) and compliance with the criteria for lawful belligerency.
While not entitled to POW status unprivileged belligerents are entitled to considerable rights protection under international humanitarian law. Additional Protocol I, Article 44(4) provides that combatants who fail to meet the more relaxed distinction requirements of the Protocol (Article 44(3)) must be provided the protections equivalent to those of a POW. In respect of occupied territory Geneva Convention IV (GC IV) protections provided to security internees as well as persons charged with a criminal offence would also apply to unprivileged belligerents (e.g., GC IV, Articles 5, 64-76, 78 and 79).
Those not otherwise protected under the Conventions or AP I would be protected by the extensive human rights provisions, including fair trial guarantees incorporated into humanitarian law by virtue of AP I, Article 75. In a European context, the 2021 Georgia v. Russia (II) case indicates that outside of the active hostilities phase (e.g., occupation) the European Convention on Human Rights would be applicable. Given the robust provisions regarding the treatment and trial of unprivileged belligerents under international humanitarian law (the lex specialis) human rights law could most likely be applied to interpret similar provisions under the Geneva Conventions and AP I, or to fill in gaps in that specialized law.
Conclusion
It is clear that both Russia and the Ukraine are employing specialized forces in circumstances where issues related to lawful combatancy and the possible commission of war crimes may arise. Such employment raises complex factual and legal issues that military commanders of both countries, and those seeking to hold them accountable must direct their attention. In this respect, particularly considering the potential for paramilitary and other groups not part of the armed forces to be engaged in combat treating all captured fighters to the standard of POWs until their status and disposition can be officially determined provides the most efficient, effective, and humane course of action.
***
Ken Watkin served for 33 years in the Canadian Forces, including four years (2006-2010) as the Judge Advocate General.
Photo credit: Ministry of Defence of the Russian Federation via Wikimedia Commons