Do civilians who take up arms to resist Russian invasion lose protected status?

On February 24th, Russian forces launched a full-scale attack on Ukraine. In the weeks since, Ukrainian government agencies and officials, including President Volodymyr Zelenskyy, have encouraged citizens to take up arms and defend their homeland. There have been widespread reports of state officials handing out thousands of guns and circulating information about making homemade explosives such as Molotov cocktails.

Civilians have some protections during times of armed conflict. It’s unlawful, according to the binding Geneva Conventions and their additional protocols, for civilians to be deliberately targeted – and any attacks by belligerents need to be both proportionate, and to distinguish between civilians and fighters.

Yet the potential involvement in Ukraine of civilians in hostilities against an invading state’s military has raised questions concerning their legal status under International Humanitarian Law (IHL). Some voices online have even claimed that those who receive weapons may no longer enjoy civilian status for the duration of the war.

This briefing explores the likely legal status of those civilians that take up arms. Understanding this framework and the implications of these classification are of particular importance to organisations like Airwars that monitor civilian harm, as well as for journalists, academics and others. This is not intended as a guide for legal professionals, though others have written guides along those lines.

The civilian-combatant distinction

In an international armed conflict, there are basically two classifications – combatant and civilian. According to IHL, combatants are members of the armed forces of the party to an armed conflict, and so have the right to directly participate in hostilities. Combatants are considered lawful targets during a conflict between states, and they directly participate in hostilities. They are also – generally – afforded immunity for acts committed while they are a combatant unless those acts constitute war crimes. If detained, they would be considered a prisoner of war.

By contrast a civilian is typically defined in negative terms – that is, as someone who is not a combatant. Civilians are afforded protection by international humanitarian law. Civilians and civilian objects – such as residential buildings – cannot be indiscriminately or deliberately targeted by an attacking force.

The Geneva Conventions and their additional protocols outline protection of civilians during armed conflict, both international and non-international, and declare that they “shall enjoy general protection against dangers arising from military operations.”

However, there are some circumstances in which someone can lose that protection. The statement above is caveated by another rule, that civilians are only protected against attack “unless and for such time as they take a direct part in hostilities.”

As the Ukrainian armed and territorial defense forces fiercely resist Russian invasion, so do ordinary civilians across the country. Read my dispatch for @TIME from the Western Ukraine on how citizens here mobilize and volunteer to defend the country https://t.co/31ZHKjDz5y

— Olga Tokariuk (@olgatokariuk) March 11, 2022

What is Direct Participation in Hostilities?

A person is understood to lose the protections against attack afforded to them as a civilian as soon as they directly participate in hostilities (DPH). This can range from working to make a Molotov cocktail, to picking up a gun and using it to harm a member of the attacking force.

Obviously, DPH follows on from two crucial components – one, that there are hostilities underway, and two, that an individual is directly participating in them. The notion of DPH is often fact- and context-specific, and given how dynamic the situation in Ukraine is, what exactly constitutes DPH there is open to question.

However, as laid out in the International Committee of the Red Cross’ Interpretive Guidance on DPH, there are broadly speaking, three cumulative conditions that have to be met before a specific act could be considered as direct participation.

There has to be a threshold of harm – so for example a specific act has to adversely affect the operations or capacity of one party in the conflict, or damage people or objects that are protected against direct attacks (eg civilian objects) There has to be a direct causal relationship between the specific act and the harm which arises from that act. This act has to have been carried out with the intention to aid one party in the conflict at the expense of the other.

So in the Ukrainian context, a civilian who participates in a specific act in this way – for example, picking up a gun or throwing Molotov cocktails – is considered a legitimate target for, and such a period of time when, they are directly participating in hostilities. If someone was to prepare a Molotov cocktail, that would likely be considered a preparatory act for directly participating in hostilities, which would also likely make this person targetable.

Shovelled trenches, home-made camouflage, a diagram of how to use a Molotov cocktail: this is Ukraine’s defence against Russia. https://t.co/6Fud4vNGhd

— The Economist (@TheEconomist) March 11, 2022

As soon as an individual directly participates in hostilities, for such a period of time as they continue to do so, they are generally understood to be a lawful target. “One does not lose civilian status, rather one loses protection from being directly attacked,” explains Natia Kalandarishvili-Mueller, Professor of International Law at ALTE University Georgia and lecturer in IHL at Tbilisi State University.

As expressed in Article 51 of Additional Protocol I to the Geneva Conventions, “civilians shall enjoy the protection afforded by this Section unless and for such time as they take a direct part in hostilities.”

“Put differently, for the duration of one’s direct participation in hostilities, one may be directly attacked by the adversary,” Kalandarishvili-Mueller added.

Once an individual ceases to directly participate – through going back home, putting down weapons, or otherwise not directly participating in hostilities – they regain full protection from being attacked.

Under the ICRC’s guidance on DPH, civilians “lose and regain protection against direct attack in parallel with the intervals of their engagement in direct participation in hostilities (sometimes referred to as the “revolving door” of civilian protection).”

If they take up arms once, can civilians be targeted throughout the conflict?

There is a generally understood distinction in IHL between continuous, status or function-based loss of protection and temporary, activity-based loss of protection. In the first category, the presumption is that of combatant status or continuous combatant function. This would entail joining or belonging to an organised armed group, whether state or non-state, or future intent to directly participate in hostilities.

In the second category, an individual who arms themselves with a gun and aims to maim or kill a member or members of an invading force, and then does not use the gun again after a period of time, would ultimately not be participating in hostilities after they have put the gun down again. They would not necessarily be immune from being arrested, detained or prosecuted for their actions at that point or after, depending on the domestic legal system, but they cannot be attacked.

Below, we apply those distinctions to the Ukrainian conflict more directly.

The Ukrainian army and regional governments gave out tens of thousands of weapons and encouraged people to use them. Might all those people automatically become targetable if they accept weapons?

Distinctions between civilians, armed forces, and non-state armed groups have become difficult in contemporary conflicts, particularly as modern warfare increasingly occurs in civilian areas and population centres and often involves non-state armed groups.

In Ukraine so far there have been three broad ways in which citizens who have chosen to fight have responded to the Russian invasion. Each one has different legal implications.

The first is those citizens voluntarily enlisting for the Ukrainian army to fight the Russian invasion. In doing so, individuals will lose their right to not be directly attacked for at least as long as they are part of the regular armed forces.

The second is those that have engaged in ad hoc but semi-organised forms of defence, in particular a loose command structure emerging as part of a movement known as the Territorial Defense Forces.

These groups have been identified as wearing yellow armbands and other insignia to distinguish them, potentially from both Ukrainian civilians and invading Russian troops.

Four conditions have to be met to be considered irregular combatants:

Being commanded by a person responsible for subordinates Having a fixed and distinctive insignia Carrying arms openly conducting operations Operating in accordance with the laws and customs of war – such as not firing indiscriminately on civilians or civilian objects.

For the duration of the war, irregular combatants would therefore lose their civilian status.

In this specific conflict, Emily Crawford from the University of Sydney Law School has argued that the Territorial Defense Forces and groups like them have reached the threshold of being combatants.

Civilians with guns

The third, and legally most complicated, group is those Ukrainian civilians who have taken guns distributed by the state or the army, or those who have prepared and thrown Molotov cocktails.

Ofer Fridman, a Senior Lecturer in War Studies at King’s College, University of London, explained that in situations like these, civilian status would be treated more of a continuum than a hard yes or no.

“Essentially, the more you participate, the more of a target you are,” Fridman said. “Participating on a low level – providing shelter, helping the wounded, driving ammunition, or even supporting from home by handing out leaflets – does not necessarily turn you into a legitimate target. Participating on a high level, such as in the way militants do, definitely does.”

It is important to remember people can only be targeted as long as they are directly participating in hostilities. Schools of thought do differ about whether or not someone who continuously participates in hostilities but is not part of a group doing so can be considered a civilian. The ICRC’s guidance – which is the classical interpretation of the relevant article – takes a narrow view of what constitutes DPH by asserting that only when an individual is engaging in preparatory acts for or directly engaging in hostilities are they targetable. As such, an indiscriminate attack on the house or building that they live in would be considered an attack on civilians, not on civilians engaging in DPH, and so would be considered unlawful.

Gun school: Ukraine rolls out weapons training for civilians https://t.co/g4SAPR4Ebj

— Irish Examiner (@irishexaminer) March 14, 2022

As Professor of IHL Dapo Akande notes, “This suggests that the ICRC rejects the notion of continuous direct participation. This is the idea that a person who takes a direct part in hostilities remains a valid target until he opts out of the hostilities through extended non-participation.” However, others may argue that if someone is participating in hostilities but has periods of rest between specific periods of participation, those periods of rest then essentially become preparing for DPH.

As such, if an individual uses a gun to defend their house or their building – but is not part of a command structure, does not wear a distinctive insignia, and does not carry their arms openly and is also not acting in accordance with the laws of war – it is likely that when they put down their weapon, they would not be considered a lawful target. Even if everyone in their apartment building had guns or molotov cocktails and acted with intent to harm the opposing forces – but they weren’t coordinating through a command structure and did not have a distinctive uniform or insignia – then by following the ICRC guidance, they would still be considered civilians when they stopped engaging in those acts.

Again, there are classical interpretations of these distinctions, such as the narrow scope taken by the ICRC, although there have been many court cases and rulings, particularly in the US and Israel, where the exact definition of DPH has been defined differently, along the lines of a ‘continuous combat function’.

As Professor Akande explains, “One danger of the continuous direct participation approach is that it increases the possibility of error given that a person can be targeted at moments when not involved in hostile acts. Such an approach to targeting raises the question how the belligerent can be confident that an individual poses a significant danger and will return to the fight.”

With regards to the conflict in Ukraine, the line about who is directly aiding the war effort and who is directly participating in hostilities becomes more blurry. Someone who is coordinating the movement of tonnes of explosives in cities in Ukraine may or may not be considered to be directly participating in hostilities. This is likely dependent on how integral their actions are to the continuing hostilities. For example, the ICRC’s guidance suggests that building blockades or road blocks should not be considered DPH as it’s indirect participation.

But crucially if it is ever unclear whether a person has civilian status or not, the assumption must always be that they are a civilian. As an additional protocol to the Geneva Conventions explicitly states: “in case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”

If detained, would an armed civilian be treated as a prisoner of war?

In terms of detention, an article in one of the Geneva Conventions’ additional protocols offer some basic guarantees of humane and non-discriminatory treatment. Further protections are offered to those that have prisoner of war status under Article 4, Geneva Convention III.

Article 4 of Geneva Convention III requires at a minimum that the person detained be a member of an organised armed group or militia with a recognisable command structure that carry arms openly, and are recognisable at a distance. As such it would be unlikely that most civilians taking part in the Ukrainian conflict would meet that criteria.

However, this does not mean that a civilian captured under these circumstances could be degraded, abused or tortured. They must be afforded the fundamental guarantees laid out in Article 75 Additional Protocol I. The internment of the civilians is also regulated by Articles 42, 43, and 78 of Geneva Convention IV.

Is Russia respecting protection of civilians under IHL in Ukraine?

It is unclear how significantly the above distinctions between combatants and civilians – which are laid out in both the Articles of and Additional Protocols to the Geneva Conventions, overly impact the targeting or attacking decisions of Russian forces.

While in the early days of the war Russia’s targets were often military, there have been extensive and widespread reports of civilian neighbourhoods being directly targeted. There have also been recent reports of agreed humanitarian corridors – onto which it is unlawful for a military to fire – being targeted, with several civilians confirmed to have been killed when trying to escape to safety.

Russian attacks have also been characterised by the bombardment of cities using often indiscriminate weapons, including heavy artillery, cluster munitions, airstrikes and cruise missiles.

The Russian bombardment of the southern city of Mariupol has now caused more than 2,500 deaths, per Oleksiy Arestovych, an adviser in President Zelensky's office. "The Russians are just wiping the city out," he said Monday. https://t.co/ZczjMmwgTB

— Natasha Bertrand (@NatashaBertrand) March 14, 2022

Conclusion

In summary, the mere fact of civilians taking a weapon from the government does not necessarily mean Ukrainians lose their civilian status. If individuals join an active armed organisation – whether the formal military or a more informal military one – they would likely lose civilian status and be considered a combatant.

However for those at home with a weapon, they would likely remain civilians unless and for such a period of time that they are directly participating in hostilities, at which point they would be considered a lawful target. And if there is ever any doubt, it should always be assumed that the individual is a civilian.