Zwanenburg, M.

English

International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Ukraine Symposium - Forced Conscription in the Self-declared RepublicsZwanenburg, M.Publication date2022Document VersionFinal published versionLink to publicationCitation for published version (APA):Zwanenburg, M. (Author). (2022). Ukraine Symposium - Forced Conscription in the Self-declared Republics. Web publication or website, Articles of War - Lieber Institute.https://lieber.westpoint.edu/forced-conscription-self-declared-republics/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:28 Nov 20231/19August 8, 2022Ukraine Symposium – Forced Conscription in the Self-Declared Republicslieber.westpoint.edu/forced-conscription-self-declared-republicsby Marten Zwanenburg | Aug 8, 2022The Guardian recently reported that men in the Donbas region in eastern Ukraine are beingforcibly conscripted into the armed forces of the self-declared Donetsk Peoples Republic(DPR) and Luhansk Peoples Republic (LPR). Although it appears this practice is not entirelynew, it has been stepped up as losses on the Russian and separatist side mount in thearmed conflict.The conflict in Ukraine is certainly not the first or the only conflict in which this practice hastaken place. However, in eastern Ukraine it appears to now take place on a large scale andin a systematic way. This post discusses this practice from the perspective of InternationalHumanitarian Law (IHL).Application of IHLAn analysis first requires an assessment of the applicable legal regime. There is no doubtthat at least since the Russian invasion of Ukraine on 24 February 2022 there has been aninternational armed conflict between Russia and Ukraine. Under a theory offered by the2/19International Criminal Tribunal for the former Yugoslavia in the Tadić case, if Russiaexercises overall control over the DPR and LDR, then the fighting with those republics is partof an international armed conflict. A mission of experts that investigated alleged violations ofIHL and human rights in the conflict for the Organization for Security and Cooperation inEurope concluded that this was indeed the case (p. 5). Consequently, the IHL regime ofinternational armed conflict is applicable.This includes the four Geneva Conventions (GC I-IV) as well as Additional Protocol I (AP I),to which both Russia and Ukraine are parties. It also includes the 1907 Hague Convention IVwith its annexed Regulations concerning the Laws and Customs of War on Land (HagueRegulations). This is not only because both States are parties to this treaty, but also becausethe rules of the latter treaty have been considered to reflect customary IHL.Another way in which the law of international armed conflict would become applicable in therepublics is if Russia can be considered an occupying power. This is the case if Russiaexercises effective control over the territory in eastern Ukraine. As Marco Sassòli has pointedout, it is controversial whether the exercise of overall control by Russia over the self-declaredRepublics made not only IHL of international armed conflicts applicable but also conduct ofthe “republics” attributable to Russia. He explains that the majority view is that it does andthat if the majority is correct, effective control by the “republics” over parts of Ukraine wasattributable to Russia and made Russia an occupying power of those territories.This was also the conclusion of the group of experts under the Moscow mission referred toabove (of which Marco Sassòli was one of the members). If Russia is directly or indirectlyoccupying (part of) eastern Ukraine, then, in addition to the IHL regime of international armedconflict, the law of occupation also applies there. The main instruments of the law ofoccupation are the Hague Regulations and the Fourth Geneva Convention (GC IV).Forced Conscription under IHLArticle 23 (h) of the 1907 Hague Regulations provides that “A belligerent is […] forbidden tocompel the nationals of the hostile party to take part in the operations of war directed againsttheir own country, even if they were in the belligerent’s service before the commencement ofthe war.” It may be noted that this provision is limited in scope to nationals of the hostileparty. For inhabitants of eastern Ukraine who have received Russian nationality, it is thusquestionable whether this provision applies to them.To the extent they have not received that nationality voluntarily, it must be concluded that theconferral of nationality has not been in accordance with international law and must thereforebe disregarded. For inhabitants who have received Russian nationality voluntarily, it couldstill be argued that this was in violation of international law and therefore null and void. If thatis not accepted however, an interesting question is whether they have also retainedUkrainian nationality. If that is the case, one approach would be to determine which of the3/19two nationalities is the “dominant” one, as is the practice in the context of diplomaticprotection. Another approach would be to read article 23 (h) literally so that the fact that aperson has Ukrainian nationality makes it apply, regardless whether the person concernedalso has another nationality. It may or may not be that under Ukraine’s domestic law aperson who takes part in operations of war directed against it loses his or her Ukrainiannationality. If this is the case, it is an interesting question how this would affect the situation.Arguably, the taking part must have taken place before the loss of nationality takes place, sothat the violation of IHL has been committed before that point in time.Article 23 (h) prohibits compelling “to take part in the operations of war.” This appears to bemore limited than becoming part of the armed forces. For example, a person who has beenconscripted but who is still receiving military training away from the front would not seem tobe taking part in the operations of war.Another relevant IHL provision is Article 51 of GC IV. This provision provides inter alia that“The Occupying Power may not compel protected persons to serve in its armed or auxiliaryforces. No pressure or propaganda which aims at securing voluntary enlistment is permitted.”In contrast to Article 23 (h) of the 1907 Hague Regulations, this provision does not apply onlyto enemy nationals. Rather, it applies to the broader category of “protected persons.” Article4 GC IV defines this category as “those who, at a given moment and in any mannerwhatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party tothe conflict or Occupying Power of which they are not nationals.”The International Committee of the Red Cross 1958 Commentary on the Fourth GenevaConvention, Article 51 points out that the article also diverges from the Hague Regulations inthat it refers to serving in the armed or auxiliary forces rather than taking part in theoperations of war. As pointed out above, a person can serve in the armed forces while nottaking part in operations of war.Finally, Article 147 GC IV makes “compelling a protected person to serve in the forces of ahostile Power” a grave breach of the Convention which the High Contracting Parties mustcriminalize in accordance with Article 146. It would be logical to conclude that this is basedon the prohibition in Article 51, were it not that Article 147 is not limited to situations ofoccupation. This leads to the curious result that on the basis of GC IV, Russia would incurState responsibility for compelling in occupied territory, while outside occupied territory it is“only” obliged to criminalize such conduct. As was seen above, this gap is filled only partly bythe Hague Regulations.All the relevant provisions discussed above use the term “compel.” This raises the questionwhat is meant by this term. The dictionary meaning is “force to do something” or “bring aboutby force or pressure”, but this does not provide much more clarity (New Pocket OxfordDictionary, p. 176 (9  ed., C. Soanes ed.)). The second sentence of Article 51 appears toimply that “pressure or propaganda which aims at securing voluntary enlistment” must beth4/19distinguished from compelling. The U.S. Department of Defence Law of War Manual statesthat compelling does not include measures such as bribing enemy nationals or seeking toinfluence them through propaganda (§ 5.27.1). It appears difficult, however, to draw a veryprecise line between compelling and measures short of compulsion in practice. Having saidthis, some cases will clearly constitute compulsion. The article in The Guardian referred toabove, describes the case of a man being dragged into a car to be taken to a conscriptioncenter. This is a clear case of compulsion.In occupied territory, the difference between compulsion and enlistment under pressurewhich does not reach the level of compulsion is irrelevant to the extent that Article 51 alsoprohibits pressure or propaganda which aims at securing voluntary enlistment. It is likely thatthe drafters of the Geneva Conventions had in mind pressure used by Germany to enlistpersons from occupied territory into the German armed forces during the Second World Warwhen adopting this provision. Outside occupied territory, however, the difference remainsimportant.Forcible recruitment of persons may also violate other rules of IHL. For example, it is likely toconstitute a violation of Article 27 GC IV, which provides that protected persons shall at alltimes be humanely treated, and shall be protected especially against all acts of violence orthreats thereof and against insults and public curiosity. Forced recruitment can also amountto physical or moral coercion, which is prohibited by Article 31 GC IV.ConclusionIn conclusion, the forced conscription as reported by The Guardian in territory occupied byRussia either directly, or through the DPR and LPR as proxies, is in violation of GC IV andconstitutes a war crime. To the extent that enlistment is not compelled but the result ofpressure or propaganda, it is a violation of the Convention but not a war crime as such. Thedistinction between compulsion on the one hand and pressure or propaganda will not alwaysbe easy to make.If it is not forced conscription, but voluntary conscription into the armed forces of theoccupying State, the effect would probably be a criminal law matter for the occupied Stateand the person would perhaps lose his or her nationality.In the context of the wide variety of violations of IHL committed by Russia in Ukraine, thisparticular category of violations of GC IV by Russia has not received much attention.Considering the need for new recruits against the background of the mounting losses on theside of Russia and its proxies, it unfortunately looks like it will gain importance in the monthsto come.***5/19Marten Zwanenburg is Professor of Military Law at the University of Amsterdam and at theFaculty of Military Sciences of the Netherlands Defence Academy. Photo credit: PexelsSUBSCRIBERELATED POSTSSymposium Intro: Ukraine-Russia Armed Conflictby Sean Watts, Winston Williams, Ronald AlcalaFebruary 28, 2022–Russia’s “Special Military Operation” and the (Claimed) Right of Self-Defenseby Michael N. SchmittFebruary 28, 2022–Legal Status of Ukraine’s Resistance Forcesby Ronald Alcala and Steve SzymanskiFebruary 28, 2022–Cluster Munitions and the Ukraine Warby William H. BoothbyFebruary 28, 2022–Neutrality in the War against Ukraineby Wolff Heintschel von HeineggMarch 1, 2022

Ukraine Symposium - Forced Conscription in the Self-declared Republics

https://pure.uva.nl/ws/files/143398413/lieber.westpoint.edu_Ukraine_Symposium_Forced_Conscription_in_the_Self_Declared_Republics.pdf

Ukraine Symposium - Forced Conscription in the Self-declared Republics

Abstract

Similar works

Full text

Available Versions

International Migration, Integration and Social Cohesion online publications