CommentaryAfter having taken regional peace for granted for almost 80 years, or at least, having conceived war as an external and far away threat to a much-coveted equilibrium, on Thursday, February 26, Europe woke up stunned and dazed by the Russian military invasion of Ukraine.
In the framework of a comprehensive and largely unprecedented financial, economic and diplomatic response enacted by the EU and NATO, along with their closest partners, against the Kremlin, most of the national and international media companies and platforms launched massive news coverage, with minute-to-minute blogs coming from the battlefront. Given the key significance of such services in informing the public opinion on the latest humanitarian and operational developments, the complexity of the crisis certainly deserves reading keys that are not always provided within such pieces of news.
Alongside the multiple reflections concerning military strategies, geopolitical interpretations, economic analyses and socio-cultural investigations, it is indeed equally crucial for the final users of this massive amount of information to get a basic understanding of the international legal boundaries laying behind particularly meaningful expressions within armed conflicts (e.g., Jus in Bello).
It is certainly key to raise a legal debate on whether or not the massive supply of weapons to a belligerent party or the unprecedented (and explicitly) hostile economic sanctions against one of them breach the international rules governing the neutrality of countries, with a focus on its potential impact on a further internationalisation of the conflict. However, the dramatic perspective of the protection of civilians who are daily experiencing the Russia-Ukraine military clash should, at least in the view of who writes, be considered the highest priority at this stage.
In consideration of the nature and scale of its value, the almost immediate call for a mass mobilization of civilians by President Zelensky definitely constitutes one of the most problematic elements on the table, both in its tactical and legal aspects. The idea of a 21st century international armed conflict characterised by the levée en masse of civilians, besides being hardly predictable, indeed raises more than one humanitarian concern, particularly if read through the lens of international humanitarian law (IHL) with regard to direct participation in hostilities and protection of civilians.
A legal definition of the phenomenon may be identified in three out of four 1949 Geneva Conventions, the very essence of IHL provisions along with their 1977 Additional Protocols, respectively in Articles 13 of GCI and GCII and Article 4 of GCIII. Such articles define protected persons as ranging from wounded and sick (and shipwrecked) to prisoners of war. The Geneva Conventions also identify among the different categories of combatants the “Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” Notwithstanding the legal element of spontaneity, which could become subject of wide interpretation and debate in the case of a general call for military mobilization, in other words, civilians directly taking part in hostilities in non-occupied territories (as opposed to members of resistance movements in militarily occupied territories) voluntarily convert themselves into “lawful targets” losing their civilian status, albeit entitled to the protection outlined by the law of armed conflict for combatants.
Similar general logic would then apply to the same civilians directly taking part in hostilities if they are fulfilling the requisites provided by the same articles defining the members of “other militias and members of other volunteer corps […] belonging to a Party to the conflict and operating in […] their own territory.” Despite different distinctive features, such as that of being commanded by a person who is responsible for the subordinates, and wearing a fixed distinctive sign recognizable at a distance—consider the yellow band on the arm of the Ukrainian volunteers—the effect of their participation in hostilities, as a matter of fact, does not affect their status of “lawful targets” in the eyes of the enemy.
In a very complex strategic scenario that is under many aspects and for many reasons tending towards widespread urban warfare, it is easy to understand how the process of arming civilians concretely risks hiding a much more serious humanitarian issue of the distinction between civilians and combatants, under the cloak of patriotism from the national perspective, and military necessity of the defenders from the operational one.
In its complementary implementation with the other fundamental principles of IHL, the principle of distinction is the pillar of international humanitarian law and has a direct impact on all the IHL treaties and customary provisions. Clearly defined as the duty held by the Parties to a conflict to “[…] distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly […] direct their operations only against military objectives” (see Protocol Additional I to the Geneva Conventions, Article 48), the compliance with this principle is evidently more threatened in military operations conducted in urban areas. In such scenarios, the decision concerning the military nature or purpose of the object of an attack, alongside the issue of civilians taking or not taking direct part in hostilities, must be made in a context in which military targets are usually mixed and sometimes merged with civilians and civilian buildings. Moreover, for a comprehensive view of the problem, the legal cruxes posed by the complementary application of other principles of IHL other than distinction, particularly the ones of proportionality and precautions, must also be taken into account.
In the framework of the above-mentioned “call to arms” and in light of the prevailing urban background of the fighting, the terms of a proportionality assessment aimed at measuring the balance between the direct military advantage of an attack and the potential harm caused to civilians and civilian objects are indeed not to be disregarded. Realistically speaking, when cities become battlegrounds collateral damages (admittedly an unfortunate term) are almost impossible to avoid. In this context, arming civilians risks blurring the subtle line between the lawfulness or unlawfulness of an attack, eventually unbalancing the equation between humanity and military advantage in favor of the latter.
Completing the picture, in IHL terms, is the principle of precautions against the effects of attacks. Particularly in a scenario characterised by large-scale urban warfare, not only “constant care shall be taken to spare the civilian population, civilians and civilian objects […]” (see Protocol Additional I to the Geneva Conventions, Article 57). by the attacker but also “to the maximum extent feasible” Parties to the conflicts are additionally required “to protect civilians and civilian objects under their control against the dangers resulting from military operations” (see Protocol Additional I to the Geneva Conventions, Article 58). That is to say, IHL implies a duty to avoid any controversial use of civilian areas, buildings or facilities that may put the enemy in the position of conceiving them as a military objective (and thus a lawful target). Duties are consequently not limited to the attacker and the indiscriminate call to arms again highlights a further natural downside. In this case, the highly likely house-to-house battles involving armed civilians in Ukrainian urban areas risk putting the lives of civilians even more at stake by reducing the safety distance between who takes part in hostilities and who does not.
However, as already stated at the beginning, the aforementioned elements should not be considered the only ones to be relevant in the case of the current Russian-Ukrainian conflict. Many military analysts have indeed rightly stressed how crucial the contribution of civilians has been (and still is) for the Ukrainian military effort in resisting the Russian advance. A much smaller army, no matter how well-trained and equipped, is certainly taking advantage of the bravery of a large part of the population. Nonetheless, not only the human cost of throwing into battle unprepared civilians but also the risk of turning the whole population of age into a target in the eyes of the enemy should be taken into consideration when quantifying the proportion of the enormous, ongoing humanitarian crisis.
The views and opinions expressed in this commentary are those of the author and do not represent or reflect the position of the International Institute of Humanitarian Law.
Edoardo Gimigliano graduated cum laude in international politics and diplomacy from the University of Padua (Italy) and currently holds the position of Coordinator of the Special Projects Department at the International Institute of Humanitarian Law (IIHL) in Sanremo, Italy.
Suggested citation: Edoardo Gimigliano, The General Mobilization in the Russian-Ukrainian Conflict: A Humanitarian Issue Stemming from a Military Need, JURIST – Professional Commentary, March 11, 2022, https://www.jurist.org/commentary/2022/03/edoardo-gimigliano-general-mobilization-russia-ukraine-conflict-humanitarian-issue-military-need/.
This article was prepared for publication by Nandini Dwivedi, a JURIST assistant editor. Please direct any questions or comments to her at commentary@jurist.org
