The ongoing conflict involving Russian troops in Ukraine has brought to the forefront complex questions regarding international humanitarian law (IHL). Reports have surfaced of Russian soldiers operating in civilian clothing and even Ukrainian military uniforms, particularly during attempts to infiltrate Kyiv. As Ukrainian forces defend their territory, the capture of Russian soldiers – some out of uniform – raises a critical question: Does international law mandate Ukraine to grant prisoner of war (POW) status to these individuals? This article delves into this intricate issue, focusing on the critical role of the “Russian Uniform” within the framework of international law.
Understanding POW Status: Article 4 of the Third Geneva Convention
The cornerstone of POW status is Article 4 of the Third Geneva Convention. This article outlines specific criteria for who qualifies as a prisoner of war. Article 4A is particularly relevant, divided into six subcategories, with the first three being most pertinent to our discussion. Article 4A(1) clearly states that members of the armed forces of a party to a conflict, as well as members of regular militias forming part of those armed forces, are entitled to POW status. This category directly addresses regular Russian soldiers.
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 comes with caveats. These irregular forces are granted POW status only if they meet four specific conditions. Two of these conditions are crucial when considering the concept of a “russian uniform” and POW status. Firstly, irregular combatants must possess “a fixed distinctive sign recognizable at a distance.” Secondly, they must “carry arms openly.” While a full military uniform is the most common way to fulfill the “distinctive sign” requirement today, alternative methods like armbands, such as the yellow armbands used by Ukrainian defense volunteers, can also suffice, as long as they clearly differentiate combatants from the civilian population.
Article 4A(3) addresses a unique scenario: “members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” A prime historical example is the Free French forces during World War II, loyal to General de Gaulle but not recognized by the German occupying forces.
It is important to note that only Article 4A(2), pertaining to irregular forces, explicitly imposes conditions for POW status. This textual difference has led to divergent interpretations concerning the necessity of uniforms or other distinctive signs for regular armed forces (Article 4A(1)) to be granted POW status. One viewpoint argues that wearing a uniform at the time of capture is irrelevant for regular armed forces; their membership in the enemy’s military is the sole determinant. Conversely, another view, which we argue is stronger, posits that soldiers captured out of uniform should be considered “unprivileged belligerents,” lacking both POW status and combatant immunity.
Areas of Agreement: Spies, Saboteurs, and Distinctive Signs
Before delving deeper into these opposing viewpoints, it’s crucial to highlight areas of consensus. It is universally agreed that Russian soldiers engaged in espionage or sabotage within Ukrainian-controlled areas forfeit their right to POW status. As outlined in the U.S. Department of Defense Law of War Manual, individuals acting clandestinely behind enemy lines, failing to distinguish themselves as combatants, lose their combatant privileges, including POW status. This principle is supported by historical precedents, treaty provisions like the Hague IV Regulations and Additional Protocol I, and case law. While some legal instruments specifically mention spies, the International Committee of the Red Cross (ICRC) clarifies that saboteurs are treated similarly regarding POW status.
Another point of agreement concerns the “distinctive sign” requirement. It is accepted that a full military uniform is not mandatory. The Law of War Manual clarifies that any sign that effectively distinguishes a person from the civilian population is sufficient. This could include a helmet, headdress, partial uniform, armband, or load-bearing vest. The ICRC concurs, emphasizing the functionality of the sign in differentiation.
Furthermore, while wearing enemy uniforms to launch attacks or shield military operations is explicitly prohibited under Additional Protocol I (which both Russia and Ukraine have ratified) and customary international law, the mere act of wearing an enemy uniform is not in itself a reason to deny POW status. The crucial factor determining POW status, in such cases, depends on the broader debate regarding the uniform requirement for regular armed forces, which we will now explore.
The Argument Against a Uniform Requirement for Regular Armed Forces
Advocates against a strict uniform requirement for regular armed forces base their argument primarily on the text of Article 4 itself. They emphasize that the conditions for POW status – including the “distinctive sign” – are explicitly mentioned in Article 4A(2) for irregular forces but are absent in Article 4A(1) and 4A(3) which pertain to regular armed forces. This, they contend, indicates a deliberate intent by the drafters to apply these conditions only to militias and volunteer corps, not to the regular army. For regular soldiers, like Russian troops, their membership in the armed forces should be the sole determinant of POW status, regardless of whether they are wearing a “russian uniform” at the time of capture.
Supporting this interpretation, the Final Record of the Diplomatic Conference that produced the Geneva Conventions reveals discussions where the Soviet representative raised concerns about potential misinterpretations imposing conditions on regular armed forces. The Belgian representative reassured him that the conditions were intended only for irregular forces.
Eminent legal scholars and practitioners, including Hays Parks, former Law of War Advisor for the U.S. Army and Department of Defense, and Major General (ret.) A.P.V. Rogers, former Director of the U.K.’s Army Legal Services, have also supported this “membership approach.” Parks argued that the conditions in Article 4A(2) are “intentionally and expressly narrower,” and historical state practice suggests that POW status for regular military forces has historically been “absolute and unqualified.”
The U.S. DoD Law of War Manual and the U.S. Army and Marine Corps Commander’s Handbook on the Law of Land Warfare similarly adopt this “membership approach,” stating that members of a state’s armed forces are entitled to POW status based on their membership alone, without explicitly conditioning it on uniform or distinctive signs. However, these documents acknowledge that the conditions in Article 4A(2) reflect attributes typically associated with regular armed forces – discipline, adherence to law, and distinguishability from civilians – which contribute to civilian protection.
The Argument For a Uniform Requirement for Regular Armed Forces
The opposing argument, which we find more persuasive, builds upon the acknowledgment that the conditions in Article 4A(2) are indeed “attributes” of a regular military. This perspective argues that these conditions, particularly the “distinctive sign,” are implicitly inherent in the very concept of “members of the armed forces” as understood in international law. Therefore, the drafters of the Third Geneva Convention did not deem it necessary to explicitly reiterate the uniform or distinctive sign requirement in Article 4A(1) because it was already understood as a fundamental characteristic of regular armed forces.
Centuries of state practice underpin this interpretation. The consistent practice of states requiring their armed forces to wear distinctive insignia, and later uniforms, predates the Geneva Conventions. While the initial purpose might not have been solely to distinguish combatants from civilians, this secondary benefit has become a long-standing and crucial aspect of uniform usage. By the time of the 1899 Hague II Regulations, which significantly influenced the language of Article 4, the understanding was that armed forces were those fighters who wore uniforms or otherwise clearly differentiated themselves from civilians. This understanding persisted and was even more entrenched by the time the Third Geneva Convention was negotiated. Thus, explicitly adding a uniform condition to Article 4A(1) would have been seen as redundant.
The ICRC’s 1960 Pictet Commentary on Article 4A(3) reinforces this point. It explains that the “members of armed forces” in Article 4A(3) differed from those in Article 4A(1) only in terms of allegiance to a non-recognized authority. Crucially, it stated that Article 4A(3) forces possessed “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.” The Commentary concludes that the drafters justifiably considered it unnecessary to specify the conditions of Article 4A(2) for Article 4A(3) forces because these attributes were already inherent. By extension, this logic applies equally to Article 4A(1).
A U.S. Department of Justice Office of Legal Counsel Opinion further emphasizes the point, arguing it would be “utterly illogical” to require uniforms or distinctive signs for irregular forces to obtain POW status while simultaneously allowing regular armed forces to forgo such distinction and still claim POW status.
Most importantly, a teleological interpretation, focusing on the object and purpose of the Third Geneva Convention, strengthens the argument for a uniform requirement. Article 31(1) of the Vienna Convention on the Law of Treaties mandates treaty interpretation “in light of its object and purpose.” The primary aim of the Third Geneva Convention, as stated in the ICRC’s 2020 Commentary, is to “mitigate as far as possible, the inevitable rigours [of war] and to alleviate the condition of prisoners of war.”
The principle of distinction, considered “intransgressible” by the International Court of Justice, is central to IHL. Its core objective is to protect civilians by distinguishing them from combatants. Wearing uniforms and distinctive signs is fundamental to achieving this distinction. It becomes incongruous if the principle of distinction is critical for irregular forces in Article 4A(2) but not for regular forces in Articles 4A(1) or (3).
Leading scholars like Yoram Dinstein and Marco Sassoli, along with legal experts Waldemar Solf, Karl Partsch, and Michael Bothe, also support this view. Dinstein argues that blurring the lines between combatants and civilians inevitably leads to civilians suffering as suspected combatants. Therefore, customary international law sanctions combatants who masquerade as civilians by denying them POW privileges. This perspective suggests that Russian troops captured out of uniform, regardless of whether they are engaged in espionage or sabotage, should not be granted POW status.
Additional Protocol I and its Implications
Both Russia and Ukraine are party to Additional Protocol I, which further refines the rules of combatant status and POW entitlement. Article 44(1) of Additional Protocol I reaffirms that combatants are entitled to POW status. Article 44(3) mandates 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 introduces a degree of flexibility, allowing combatants who fail to distinguish themselves to retain combatant status (and thus POW status) if they carry arms openly during military engagements and while visible to the enemy during deployment. Article 44(4) clarifies that a combatant failing to meet the distinction requirement of Article 44(3) forfeits POW status. Article 44(7) emphasizes that Article 44 is not intended to alter the “generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units.”
Alt text: A detailed view of the parade uniform of the guards of honor of the Russian Ground Forces, showcasing its distinctive and recognizable design.
The 1987 ICRC Commentary on Article 44(7) confirms that the exception in Article 44(3) can apply even to “a combatant of the regular army,” potentially including Russian soldiers. However, Article 46(1) of Additional Protocol I stipulates that members of armed forces captured while engaging in espionage are denied POW status, irrespective of other provisions. This denial extends to saboteurs as well.
Therefore, under Additional Protocol I, only a Russian soldier neither engaged in espionage nor sabotage might potentially qualify for the Article 44(3) exception, perhaps in a scenario where they are behind enemy lines attempting to rejoin Russian forces. Even then, if such a soldier engages in an attack (including self-defense), they would ideally need to be in uniform or carrying arms openly. Given the widespread distribution of weapons to Ukrainian civilians, simply carrying arms openly in civilian clothing may not effectively distinguish a combatant from the civilian population in the current conflict environment.
Conclusion: Uniforms and POW Status in the Ukraine Conflict
Both sides of the debate regarding the “distinctive emblem” as a prerequisite for POW status present compelling arguments grounded in textual analysis, treaty negotiation history, state practice, opinio juris, and the fundamental object and purpose of the Third Geneva Convention and Article 4. While differing interpretations exist, the position advocating for a uniform or distinctive sign requirement for regular armed forces to obtain POW status appears to be the stronger and more legally sound interpretation, aligning with operational realities and the principle of distinction.
This interpretation is also consistent with the POW status conditions outlined in Additional Protocol I, applicable to both Russian and Ukrainian forces. While Article 44 introduces some flexibility, this relaxation is likely to apply only in very limited circumstances. Consequently, under prevailing international law, it is reasonable to argue that Ukraine is not legally obligated to grant POW status to Russian troops captured in civilian clothes or Ukrainian uniforms.
It is crucial to emphasize that this IHL principle of distinction applies equally to Ukrainian forces, both regular and irregular. An exception exists for members of a levée en masse, who are not required to wear a distinctive emblem but must carry arms openly to qualify for POW status under Article 4A(6) of the Third Geneva Convention. Therefore, to ensure clarity and reciprocal adherence to IHL, it is advisable for Ukrainian forces not in regular uniform to utilize distinctive signs like yellow armbands to clearly identify themselves as combatants, thereby obligating Russian forces to grant them POW status if captured in most situations.
This analysis is adapted from a chapter forthcoming in the Oxford University Press book Prisoners of War in Contemporary Conflict edited by Michael N. Schmitt.
Major Chris Koschnitzky is a military professor at the Stockton Center for International Law at the U.S. Naval War College.
Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy, 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
