Hybrid Conflict and Prisoners of War: The Case of Ukraine

Lieber Institute for Law and Land Warfare Book Series - Complex Battlespaces: The Law of Armed Conflict and the Dynamics of Modern Warfare, ed. by Christopher M. Ford and Winston S. Williams, Oxford University Press, 2018, Forthcoming

SMU Dedman School of Law Legal Studies Research Paper No. 381

27 Pages Posted: 23 Feb 2018 Last revised: 6 Mar 2018

See all articles by Jeffrey Kahn

Jeffrey Kahn

Southern Methodist University - Dedman School of Law

Date Written: 2018

Abstract

The “Euromaidan” Revolution in Ukraine in winter 2014 led to the ouster of the pro-Russian Ukrainian President Viktor Yanukovych. Three days after Yanukovych fled to Russia, Russian soldiers wearing uniforms lacking any insignia entered and seized the strategically important and historically contested Crimean peninsula, Ukrainian sovereign territory. Russian President Vladimir Putin denied any connection to these fighters, Spetsnaz (special forces) and naval infantry, dubbed the “Little Green Men” by a cynical but observant press. Only after their numbers proved overwhelming, and the annexation of Crimea was a fait accompli, did President Putin admit to using military force to seize the territory of another sovereign State.

That spring, with Russian troops massing on the Ukrainian eastern border, a series of “spontaneous” but surprisingly well-organized protests erupted in a part of eastern Ukraine known as the Donbas region. Two parts of that region, Donetsk and Luhansk, soon declared themselves to be independent “people’s republics.” The rebels benefitted from an unacknowledged but steady supply of Russian matériel and fighters. Ukrainian officials declared this another “stealth invasion,” a charge their Russian counterparts denied. Rather than declare war with a militarily superior Russia, Ukraine announced an “anti-terrorist operation.” The violence that followed claimed almost 10,000 lives by July 2016 and severely restricted the basic human rights of 2.7 million inhabitants of areas controlled by armed groups.

The conflicts in eastern Ukraine and Crimea are not the first time sovereign States have clashed under murky and confused circumstances. The law governing international armed conflict, i.e., the law regulating war between States, has long recognized this fact; the threshold to trigger it is a very low one and it applies “even if the state of war is not recognized by one of them.” Nevertheless, some perceive Ukraine as a case of “hybrid war” for which the old rules are ill-fitting at best, and no longer capable of regulation or restraint.

What happens to international humanitarian law (IHL) when, according to Russian General Valériy Gerasimov, the hybrid nature of recent conflicts produces a “tendency to erase differences between the states of war and peace?” This chapter argues that there are in fact two distinct armed conflicts ongoing in Eastern Ukraine. First, there is an ongoing but unacknowledged international armed conflict (IAC) in eastern Ukraine between Ukraine and Russia. Second, there is also fighting sufficiently intense and involving sufficiently organized non-State actors to be considered a non-international armed conflict (NIAC) between the Ukrainian State and rebel forces in Donetsk and Luhansk. Adding another layer of complexity, at certain times and places, it may be that this NIAC may have transformed into an IAC because of Russia’s overall control of these non-State actors.

All of the non-State actors fighting against Ukrainian State authority have utilized a range of tactics that fall within the contemporary concept of hybrid warfare: a term that encompasses tactics, alliances, and goals of both a military and non-military nature meant to obscure the use of armed force and throw into confusion the nature of its regulation. But this chapter argues that the existing law of armed conflict would be adequate to the task of regulating these conflicts if the State parties involved acknowledge the de facto nature of the situation. That, ironically, would apply the requisite law, which is what the 1949 Geneva Conventions sought to encourage by the adoption of Common Article 2. Thus, the fighting in eastern Ukraine presents a host of old problems, not ones newly created by hybrid warfare. And of course, political and strategic influences seem to have aligned with hybrid tactics to incentivize the type of creative law avoidance inherent in General Gerasimov’s comment. The real danger presented by the idea of hybrid warfare may be in the temptation to discard the Geneva Convention based methodology for classifying armed conflicts, and the legal framework it triggers, in search of something more “workable.”

Part I of this paper briefly examines the occasionally forgotten history of this fashionable neologism, hybrid conflict. As a description of facts on the ground, the word “hybrid” adds little to our understanding of how States may engage in armed conflict. In eastern Ukraine, little distinguishes this so-called gibridnaya voina — the Russian term for hybrid war, using an adjective generated from English — from the old Soviet doctrine of maskirovka: the use of deception and false information to confuse one’s adversaries and their allies.

Part II examines how international law applies to such hybrid warfare. The focus of this section concerns the criteria for determining the existence of an armed conflict, the differing protections accorded belligerents in different kinds of armed conflict, and the criteria for attributing responsibility to States acting through non-State proxies. A determination of State responsibility may, in some cases, change the nature of the conflict from a NIAC to an IAC or establish a parallel IAC alongside an ongoing NIAC.

Recitation of these familiar legal tests and concepts is not to say that hybrid warfare, practiced in an instantaneous internet age, is inconsequential to the rights and protections accorded to participants. Part III studies some of these effects. Adoption of some of hybrid warfare’s worst attendant practices suggests how a State may fall into noncompliance with some of the most established rules of the law of armed conflict. The reason this is so is because “hybridity” is necessarily in tension with the obligation of all States “to respect and to ensure respect” for international humanitarian law “in all circumstances.”

My general example in this section is the public display of prisoners throughout the armed conflict(s) in eastern Ukraine. My particular example is the exchange of a Ukrainian Air Force officer for two Russian Special Forces soldiers in May 2016. All three found themselves accused of various crimes under Ukrainian and Russian civilian criminal codes for their conduct on the battlefield. Ordinarily, one would expect States to demand the full panoply of protections afforded to members of their armed services in the event of capture. But in conditions of “hybrid war,” the nature of the conflict, the participation of fighters in it, and the responsibility of States is sometimes contested and often obscured. While lawyers assigned to these individuals unsuccessfully demanded prisoner of war status for their clients, the States that may have sent those soldiers into battle (and sometimes even the defendants themselves) demurred from demanding such protection themselves.

Keywords: International Humanitarian Law, Law of Armed Conflict, International Armed Conflict, Non-international Armed Conflict, Russia, Ukraine, Hybrid Warfare, Nadia Savchenko, Valeriy Garasimov, Nadia Savchenko, Yevgeny Yerofeyev, Aleksandr Aleksandrov

Suggested Citation

Kahn, Jeffrey, Hybrid Conflict and Prisoners of War: The Case of Ukraine (2018). Lieber Institute for Law and Land Warfare Book Series - Complex Battlespaces: The Law of Armed Conflict and the Dynamics of Modern Warfare, ed. by Christopher M. Ford and Winston S. Williams, Oxford University Press, 2018, Forthcoming; SMU Dedman School of Law Legal Studies Research Paper No. 381. Available at SSRN: https://ssrn.com/abstract=3127020

Jeffrey Kahn (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States
(214) 768-2792 (Phone)
(214) 768-4330 (Fax)

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