The ongoing conflict involving Russian troops has brought to the forefront complex issues within international humanitarian law (IHL), particularly concerning the treatment of captured soldiers. Reports have consistently emerged detailing Russian forces operating in civilian attire or even Ukrainian military uniforms, especially during attempts to infiltrate Kyiv. As Ukrainian forces continue their defense, the question of prisoner of war (POW) status for detained Russian soldiers, particularly those not in standard Military Uniform Russian, becomes increasingly critical. This analysis delves into whether international humanitarian law mandates Ukraine to grant POW status to Russian combatants captured when not wearing their designated uniforms.
Understanding Article 4 of Geneva Convention III
The entitlement to prisoner of war status is outlined in Article 4A of the Third Geneva Convention. This article contains six subsections, with the initial three being most pertinent to the discussion of military uniform russian and POW status. Article 4A(1) clearly states that members of the armed forces, including regular militias that are part of a State’s armed forces, are entitled to POW status. Our focus is primarily on this category of individuals.
Article 4A(2) broadens the scope to include “members of other militias and members of other volunteer corps, including those of organized resistance movements.” However, this inclusion is conditional, requiring these irregular forces to meet four specific criteria to be granted POW status. Two of these conditions are directly relevant to the issue of uniforms. Crucially, such irregular combatants must “hav[e] a fixed distinctive sign recognizable at a distance.” Additionally, they are required to “carry[] arms openly.” In contemporary conflicts, a standard military uniform russian or any military uniform typically serves as this “distinctive sign.” However, it’s important to note that any method that effectively distinguishes combatants from the civilian population is acceptable. Examples include the yellow armbands used by Ukrainian defense volunteers.
Article 4A(3) addresses “members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” A historical example is the “Free French” forces during World War II, who were loyal to General Charles de Gaulle.
Among these three categories, only Article 4A(2), concerning irregular militia and volunteer corps, explicitly sets conditions for POW status. This textual difference has led to diverging interpretations regarding the necessity of uniforms or distinctive emblems for regular armed forces, like those of Russia, to qualify for POW status under Article 4A(1). One viewpoint asserts that wearing a military uniform russian or any distinctive attire at the time of capture is irrelevant. According to this view, POW status is solely determined by the captured soldier’s membership in the opposing armed forces. This “membership approach” is supported by legal experts like LTC Ronald Alcala and MAJ Steve Szymanski, as expressed in their Articles of War post. Conversely, a differing, and in our opinion, more legally sound perspective argues that soldiers captured without a military uniform russian or other distinctive markings should be considered unprivileged belligerents. This classification denies them both prisoner of war status and combatant immunity.
Areas of Legal Consensus
It’s crucial to acknowledge areas of agreement within international law before examining these contrasting viewpoints. There is a consensus that Russian soldiers engaged in espionage or sabotage within Ukrainian-controlled territories forfeit their right to POW status. The U.S. Department of Defense (DoD) Law of War Manual (§ 4.17.5) clarifies this point:
Spies, saboteurs, and other persons engaged in secretive hostile activities behind enemy lines, … by acting clandestinely or under false pretenses, fail to distinguish themselves as combatants generally must do. Thus, persons otherwise entitled to privileges of combatant status, including POW status, forfeit their entitlement to those privileges while engaged in spying, sabotage, or other hostile, secretive activities behind enemy lines.
Historical precedents and legal instruments support this principle. These include the negotiating history of Article 4 (referenced in the DoD Law of War Manual 153, n. 361), non-binding expert declarations (1874 Brussels Declaration; 1880 Oxford Manual), treaty regulations [1907 Hague IV Regulations, art. 31; 1977 Additional Protocol I, art. 46(1)], and relevant case law (Ex parte Quirin, Mohamed Ali). While some sources, like Article 46(1), specifically mention spies, the 2020 ICRC Commentary to the Third Geneva Convention clarifies that “there is a well-established practice that saboteurs are treated in the same way as spies with regard to prisoner-of-war status” (¶ 990).
Furthermore, there’s agreement that the “distinctive sign” requirement doesn’t necessitate a complete military uniform russian. The DoD Law of War Manual (§ 4.6.4.1) elaborates:
The requirement does not specify a particular sign or emblem that persons must wear. Wearing a military uniform satisfies this condition. However, a full uniform is not required. The sign suffices if it enables the person to be distinguished from the civilian population. For example, a helmet or headdress that makes the silhouette of the individual readily distinguishable from that of a civilian can meet this requirement. Similarly, a partial uniform (such as a uniform jacket or trousers), load bearing vest, armband, or other device could suffice, so long as it served to distinguish the members from the civilian population.
The ICRC concurs with this interpretation (2020 ICRC Commentary, ¶ 985).
Lastly, while wearing enemy uniforms, such as Ukrainian uniforms by Russian soldiers, to conduct attacks or to gain military advantage is prohibited, the act of wearing them is not inherently unlawful. For states party to Additional Protocol I, including both Ukraine and Russia, this prohibition is stated in Article 39(2). This article reflects customary international law (DoD Law of War Manual, § 5.23.1; ICRC Customary IHL study, rule 62). However, violating IHL in this manner is not, in itself, grounds for denying POW status. Therefore, the POW status of soldiers captured while wearing enemy uniforms hinges on the subsequent discussion regarding the uniform requirement.
The Argument Against a Uniform Requirement for Regular Armed Forces
Those who argue against a strict uniform requirement for members of regular armed forces to be granted POW status emphasize the explicit wording of Article 4. They highlight that the conditions related to distinctive signs and open carrying of arms are present in Article 4A(2) but absent in 4A(1) and 4A(3). This, they argue, indicates that the drafters intended these conditions to apply exclusively to militia or volunteer corps not integrated into a state’s formal armed forces. For regular armed forces, such as the Russian military, membership in these forces is the decisive factor for POW status, irrespective of whether a military uniform russian is worn at the time of capture.
Interestingly, the Final Record of the Diplomatic Conference that produced the Geneva Conventions includes a discussion that lends support to this interpretation (pp. 466-67). The Soviet representative voiced concerns that the text could be interpreted to impose uniform conditions on regular armed forces for POW status eligibility. However, the Belgian representative reassured him that the intention was to apply the four conditions solely to members of militia or volunteer corps.
Prominent legal scholars and practitioners have also adopted this stance. These include Hays Parks, former Law of War Adviser for the U.S. Army and later the Department of Defense, and Major General (ret.) A.P.V. Rogers, former Director of the U.K.’s Army Legal Services. Sean Watts (ch. 44), Co-Director of the Lieber Institute, also aligns with this view. Parks, for instance, argued that the “[e]xtension of combatant and prisoner of war status in Article 4A(2) is intentionally and expressly narrower.” He further cites state practice, suggesting that “[h]istorically, regular military forces’ entitlement to prisoner of war status has been absolute and unqualified.”
The DoD Law of War Manual (§4.5.1.3) and the U.S. Army and Marine Corps Commander’s Handbook on the Law of Land Warfare (¶ 3.16) also endorse this “membership approach.” The latter publication states, “[m]embers of the armed forces of a State party to a conflict…are entitled to prisoner of war status based on their membership in the armed forces.” Neither of these documents conditions this entitlement on wearing a military uniform russian or any other distinctive sign.
However, it is acknowledged that the conditions outlined in Article 4A(2) “reflect the attributes common to regular armed forces of a State. By seeking to ensure that participants in hostilities are sufficiently disciplined, law abiding, and distinguishable from the civilian population, these conditions help protect the civilian population from the hardships of war… These conditions may be understood to reflect a burdens-benefits principle, i.e., the receipt of certain benefits in the law of war (e.g., privileges of combatant status) requires the assumption of certain obligations” (§4.6.1).
The Argument for a Uniform Requirement for Regular Armed Forces
The opposing viewpoint, which we consider more compelling, builds upon the Manual’s recognition of the conditions in Article 4A(2) as “attributes” of a regular military. This perspective posits that these conditions are implicitly inherent in the very concept of “members of the armed forces.” Consequently, the drafters of the Third Geneva Convention did not deem it necessary to explicitly state that members of regular armed forces must wear a “fixed distinctive sign recognizable at a distance” (or fulfill the other criteria in Article 4A(2)) to qualify for POW status.
Several arguments support this interpretation. Perhaps most significantly, the consistent state practice over centuries of national armed forces wearing distinctive insignia, and subsequently uniforms, is a strong indicator. While the initial rationale for uniform adoption might not have been primarily to differentiate combatants from civilians, this function has become a long-established secondary benefit. By the time the 1899 Hague II Regulations were drafted—which served as a model for the language in Article 4—the understanding was that members of armed forces were those combatants who wore uniforms or otherwise clearly distinguished themselves from the civilian population. This understanding was a fortiori prevalent when the Third Geneva Convention was being negotiated half a century later. Therefore, explicitly adding a military uniform russian or distinctive insignia requirement to Article 4A(1) would have been considered redundant.
The ICRC’s 1960 Pictet Commentary on Article 4A(3) directly supports this point. Similar to Article 4A(1), Article 4A(3) lacks explicit criteria. The Commentary explains that Article 4A(3) “members of armed forces” differed from Article 4A(1) regular armed forces in “one respect only”: “the authority to which they profess allegiance is not recognized by the adversary as a party to the conflict.” Otherwise, Article 4A(3) forces “have all the material characteristics and all the attributes of armed forces in the sense of subparagraph (1): they wear uniforms, they have an organized hierarchy and they know and respect the laws and customs of war.” Consequently, “[t]he delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed forces the requirements stated in sub-paragraph 2 (a), (b), (c) and (d)” (p. 62). In essence, the Commentary justifies omitting the criteria for Article 4A(3) by referencing Article 4A(1), implying that these criteria are inherently understood for regular armed forces as well.
This interpretation is logically sound. As a Department of Justice Office of Legal Counsel Opinion argues, it would be “utterly illogical” to require militia and volunteer groups to wear uniforms or display distinctive insignia for POW status, while simultaneously allowing members of a State’s armed forces or regular armed forces of an unrecognized authority to forgo such requirements and still retain POW status.
Most importantly, a teleological interpretation of Article 4A(1) bolsters the uniform requirement view. Article 31(1) of the Vienna Convention on the Law of Treaties mandates that treaties be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” As the ICRC’s 2020 Commentary states, the primary object and purpose of the Third Geneva Convention is “to mitigate as far as possible, the inevitable rigours [of a war] and to alleviate the condition of prisoners of war” (¶ 144).
Consideration must also be given to the principle of distinction, recognized by the International Court of Justice as “intransgressible,” which aims to protect civilians from the dangers of armed conflict as much as possible. Wearing uniforms and other distinctive signs is fundamentally intended to achieve this distinction. It would be contradictory to the goal of mitigating the “inevitable rigours” of war if combatants were not required to visibly distinguish themselves from the civilian population. It is illogical for the principle of distinction to be emphasized in Article 4A(2) but not in Articles 4A(1) or (3).
The ICRC has adopted this stance, as have numerous distinguished scholars. Yoram Dinstein notes that “[b]lurring the lines of division between combatants and civilians is bound to result in civilians suffering the consequences of being suspected as covert combatants. Hence, under customary international law, a sanction (deprivation of the privileges of prisoners of war) is imposed on any combatant masquerading as a civilian in order to mislead the enemy and avoid detection.” Marco Sassoli (p. 251), and Waldemar Solf, Karl Partsch, and Michael Bothe (p. 285) did similarly concur. Following this line of reasoning, Russian troops captured without a military uniform russian, regardless of whether they are engaged in espionage or sabotage, would not be entitled to POW status.
Additional Protocol I and Uniforms
Both Russia and Ukraine are signatories to Additional Protocol I. Article 44(1) of this protocol states that combatants are entitled to POW status. Article 44(3) obligates combatants to “distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.” However, it allows for the retention of combatant status, and thus POW status, even when they cannot distinguish themselves, provided they carry arms openly during military engagements and are visible to the enemy during deployment for such engagements. Article 44(4) stipulates that a combatant who fails to distinguish themselves as required by Article 44(3) “shall forfeit his right to be a prisoner of war.” Importantly, Article 44(7) emphasizes that “[t]his article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict.”
The 1987 ICRC Commentary on Article 44(7) confirms that the exception in 44(3) applies to “a combatant of the regular army,” including Russian soldiers (¶ 1723). However, most Russian soldiers operating out of military uniform russian in the described scenarios would likely not benefit from this exception due to Article 46(1). This article states, “Notwithstanding any other provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy.” As previously noted, saboteurs are legally considered in the same manner as spies.
Therefore, only a Russian soldier neither engaging in spying nor sabotage could potentially qualify for the Article 44(3) exception. This might include a soldier who becomes separated from their unit and is attempting to return to Russian-controlled areas. If such a soldier engages in offensive actions against Ukrainian forces (even in self-defense, see Article 49), they would need to be in military uniform russian or openly carrying arms. Wearing a uniform in such circumstances is impractical. Regarding openly carrying arms, it is relevant to note that Ukraine has distributed at least 18,000 weapons to civilian citizens, and this number continues to rise. In this context, it is questionable whether openly carrying weapons while in civilian clothing would effectively fulfill the requirement of distinguishing oneself from the enemy.
Conclusion: Uniforms and POW Status
Both sides of the debate concerning the “distinctive emblem” requirement for POW status present robust arguments rooted in textual interpretation, the treaty’s negotiating history, state practice, opinio juris, and the underlying objectives of the Third Geneva Convention and Article 4. While legitimate differences in legal interpretation exist, we maintain that requiring a distinctive emblem, such as a military uniform russian, is the more legally sound position and operationally sensible approach.
This interpretation also aligns with the conditions for POW status outlined in Additional Protocol I, which applies to both Russian and Ukrainian forces. While Article 44 of Protocol I offers a limited relaxation of the uniform requirement, this relaxation is unlikely to be applicable in most practical scenarios. Consequently, under current international law, we argue that Ukraine is not obligated to grant POW status to Russian troops captured while in civilian clothing or Ukrainian uniforms.
Finally, it is crucial to emphasize that this IHL condition regarding uniforms applies equally to Ukrainian forces, both regular and irregular. The single exception is members of a levée en masse, who, according to Article 4A(6) of the Third Geneva Convention, are not required to wear a distinctive emblem but must carry arms openly to be eligible for POW status. This topic will be explored in a forthcoming Articles of War post. Therefore, we strongly advise all Ukrainian forces not in uniform to utilize yellow armbands or other clear markings to distinguish themselves as combatants. This practice would ensure that Russian forces are obligated to grant them POW status if captured in most situations.
This post was adapted in part from a chapter accepted for publication by Oxford University Press in the forthcoming book Prisoners of War in Contemporary Conflict edited by Michael N. Schmitt and due for publication later this year.
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Major Chris Koschnitzky is a military professor at the Stockton Center for International Law at the U.S. Naval War College, where he co-teaches a course on the Law of Armed Conflict.
Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy. He is also Professor of Public International Law at the University of Reading, Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas, and Professor Emeritus at the United States Naval War College.
Photo credit: kremlin.ru via Wikimedia Commons
