The ongoing conflicts around the globe highlight the critical importance of international humanitarian law (IHL), especially concerning the treatment of captured combatants. Recent reports have emerged regarding Russian troops operating in civilian clothing or even Ukrainian military uniforms, raising complex questions about their status under IHL if captured. Specifically, a crucial question arises: Does international law mandate Ukraine to grant prisoner of war (POW) status to Russian soldiers apprehended while not wearing their designated military uniforms? This article delves into this intricate issue, exploring the legal framework and varying interpretations, drawing upon the Geneva Conventions and Additional Protocols to clarify the entitlements and obligations in modern armed conflict.
Understanding Article 4 of the Third Geneva Convention
The cornerstone of POW status is Article 4 of the Third Geneva Convention. This article meticulously outlines the criteria for who qualifies as a prisoner of war. Article 4A is particularly relevant, presenting six categories of individuals eligible for POW status, with the first three being most pertinent to our discussion. Article 4A(1) plainly states that members of the armed forces of a party to the conflict, including regular militias that are part of those armed forces, are entitled to POW status. This is the primary category under consideration when evaluating the status of regular soldiers.
Article 4A(2) extends POW status to members of “other militias and members of other volunteer corps, including those of organized resistance movements.” However, this extension is conditional. These irregular forces must satisfy four specific conditions to be granted POW status. Two of these conditions are particularly germane to the question of uniforms. The most critical requirement is that these irregular combatants must “hav[e] a fixed distinctive sign recognizable at a distance.” While a full military uniform readily serves this purpose, other means of distinction from the civilian population are also acceptable, such as the yellow armbands used by Ukrainian volunteer defense forces. The second relevant condition is that members must “carry[] arms openly.”
Article 4A(3) addresses a specific scenario: “members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” A classic historical example is the “Free French” forces during World War II, loyal to General Charles de Gaulle, whose authority was not recognized by Germany.
It is crucial to note that only Article 4A(2), concerning irregular forces, explicitly imposes conditions for POW status. This textual divergence has fueled differing interpretations regarding the necessity of uniforms or distinctive signs for members of regular armed forces under Article 4A(1). One viewpoint asserts 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 of POW status. Conversely, another perspective argues that soldiers from regular armed forces captured without uniforms should be considered unprivileged belligerents and are not entitled to POW status or combatant immunity.
Areas of Legal Consensus
Before examining these opposing viewpoints, it’s important to highlight areas of agreement within international law. It is universally accepted that soldiers engaged in espionage or sabotage within enemy-controlled territory forfeit their right to POW status. The DoD Law of War Manual (§ 4.17.5) clarifies this, stating that spies and saboteurs, operating clandestinely and failing to distinguish themselves as combatants, lose their combatant privileges, including POW status. This principle is supported by historical precedents like the 1874 Brussels Declaration, the 1880 Oxford Manual, and treaty provisions like the 1907 Hague IV Regulations and the 1977 Additional Protocol I.
Furthermore, legal consensus exists that the “distinctive sign” requirement does not necessitate a complete military uniform. The DoD Law of War Manual (§ 4.6.4.1) explains that while a military uniform fulfills this condition, it is not mandatory. Any sign that effectively distinguishes a combatant from the civilian population suffices. This could include a helmet, headdress, partial uniform items, armbands, or load-bearing vests. The ICRC similarly acknowledges this flexible interpretation.
It’s also established that while wearing enemy uniforms to deceive or gain a military advantage is prohibited under Article 39(2) of Additional Protocol I (and customary international law), simply wearing a uniform that is not one’s own is not inherently unlawful. However, violating IHL in this way does not automatically negate POW status. The determination of POW status in such instances hinges on the broader debate regarding uniform requirements.
The Argument Against a Uniform Requirement for Regular Armed Forces
Proponents of the view that uniforms are not a prerequisite for POW status for regular armed forces emphasize the explicit wording of Article 4A. They argue that the conditions listed in Article 4A(2), including the distinctive sign requirement, are intentionally limited to irregular militias and volunteer corps, not extending to regular armed forces as defined in Article 4A(1). For soldiers belonging to state armed forces, like Russian soldiers captured by Ukrainian forces, their membership in those forces is the decisive factor for POW status, regardless of uniform.
This interpretation finds support in the Final Record of the Diplomatic Conference that produced the Geneva Conventions. Discussions during the conference reveal that the intention was to apply the conditions only to irregular forces, not to impose additional uniform requirements on regular armies.
Eminent legal experts, such as Hays Parks, former Law of War Advisor to 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 endorsed this position. They argue that historically, POW status for regular military forces has been unconditional and based solely on membership.
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) reflect this “membership approach.” These documents assert that membership in a state’s armed forces is the basis for POW status, without explicitly requiring uniform adherence. However, it’s acknowledged that conditions like wearing uniforms are typical attributes of regular armed forces, contributing to discipline, lawfulness, and distinction from civilians – principles that protect civilian populations in war.
The Argument for a Uniform Requirement for Regular Armed Forces
Conversely, a compelling argument posits that the conditions outlined in Article 4A(2) are implicitly inherent in the very concept of “members of the armed forces” as described in Article 4A(1). This perspective suggests that the drafters of the Third Geneva Convention did not explicitly reiterate the uniform or distinctive sign requirement for regular armed forces because it was already understood as a fundamental characteristic of state militaries.
This interpretation is bolstered by the long-standing and nearly universal practice of state armed forces wearing distinctive uniforms. Historically, while the primary purpose of uniforms may have evolved, a crucial secondary function has always been to distinguish combatants from civilians. By the late 19th century, exemplified by the 1899 Hague II Regulations, military uniforms were intrinsically linked to the definition of armed forces. This understanding persisted when the Third Geneva Convention was drafted, making a redundant explicit mention of uniform requirements for Article 4A(1) unnecessary.
Soviet soldiers in dress uniform during a parade, showcasing the distinctiveness of military attire. This historical example underscores the long-established practice of uniformed armies, relevant to the interpretation of POW status under international law.
The ICRC’s 1960 Pictet Commentary on Article 4A(3) indirectly supports this. It notes that Article 4A(3) forces, while differing in allegiance, share “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 suggests that the 1949 Diplomatic Conference deemed it unnecessary to reiterate the conditions of subparagraph 2 for these forces because they inherently possessed these characteristics, implying that these characteristics, including uniform wear, are implicitly linked to the concept of “armed forces” in Article 4A(1) as well.
This perspective is further strengthened by the principle of distinction, a cornerstone of IHL, deemed “intransgressible” by the International Court of Justice. The principle of distinction aims to protect civilians by clearly differentiating combatants from non-combatants. Uniforms and distinctive signs are paramount to achieving this objective. It would be illogical for the principle of distinction to be explicitly emphasized in Article 4A(2) for irregular forces but disregarded for regular armed forces in Articles 4A(1) and (3).
Leading scholars like Yoram Dinstein and Marco Sassoli also support this view, arguing that blurring the lines between combatants and civilians endangers civilians and that customary international law sanctions combatants who disguise themselves as civilians by denying them POW privileges. Following this line of reasoning, Russian soldiers captured out of uniform could be denied POW status, irrespective of whether they are engaged in espionage or sabotage.
Implications of Additional Protocol I
Both Russia and Ukraine are party to Additional Protocol I. Article 44 of this protocol states that combatants are entitled to POW status. Article 44(3) mandates combatants to distinguish themselves from the civilian population during an attack or military operation preceding an attack. However, it allows combatants who fail to distinguish themselves to retain combatant status and POW entitlement if they carry arms openly during military engagements and while visible to the enemy during deployment. Article 44(4) stipulates that a combatant failing to distinguish themselves as required by Article 44(3) forfeits POW status. Article 44(7) clarifies that Article 44 is not intended to alter the established practice of uniform wearing by regular, uniformed armed units.
The 1987 ICRC Commentary on Article 44(7) confirms that the exception in 44(3) applies to regular army combatants, including Russian soldiers. However, this exception is unlikely to apply to most Russian troops operating out of uniform due to Article 46(1), which denies POW status to members of armed forces captured while engaging in espionage, treating them as spies. This principle extends to saboteurs.
Therefore, only a Russian soldier not engaged in espionage or sabotage might potentially qualify for the Article 44(3) exception, such as one separated from their unit and attempting to rejoin Russian lines. If such a soldier engages in combat (including self-defense), they would ideally need to be in uniform or carry arms openly. Given the widespread distribution of weapons among Ukrainian civilians, carrying arms openly in civilian clothing may not effectively distinguish a combatant from the civilian population, undermining the intent of distinction.
Conclusion: Uniforms and POW Status in Modern Conflict
Both sides of the debate regarding the “distinctive emblem” requirement for POW status present compelling arguments grounded in textual interpretation, treaty negotiation history, state practice, opinio juris, and the overarching objectives of the Third Geneva Convention and Article 4. While differing interpretations persist, the argument for a uniform or distinctive sign requirement for regular armed forces appears to be the stronger and more pragmatic position, legally sound and operationally sensible.
This perspective aligns with the conditions for POW status outlined in Additional Protocol I for both Russian and Ukrainian forces. While Article 44 offers a limited relaxation of the uniform requirement, its applicability is likely to be extremely narrow. Consequently, under prevailing international law, it is tenable 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 applies equally to Ukrainian forces, both regular and irregular. The exception is 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 legal protection, it is advisable for all Ukrainian forces not in standard uniform to utilize distinctive signs like yellow armbands to clearly identify themselves as combatants, thereby obligating opposing forces to recognize their POW status upon capture in most situations.
This article is adapted from a chapter accepted for publication in the forthcoming book Prisoners of War in Contemporary Conflict edited by Michael N. Schmitt and published by Oxford University Press.
***
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 and Professor of Public International Law at the University of Reading.
Photo credit: kremlin.ru via Wikimedia Commons
