The opening days of the Russian invasion of Ukraine triggered a fierce and inspiring response by ordinary Ukrainians. They joined together in a mass uprising to defend their homeland. Under international humanitarian law (IHL), such an act of resistance is known as a “levée en masse” (levée).
A levée is a unique category that temporarily extends combatant status to participants in the opening stage of the response to an invasion, before there has been time for their formal incorporation into the military. The associated benefits and burdens of combatancy come with joining a levée. Participants may fight with immunity from ordinary criminal prosecution and with entitlement to prisoner of war (PoW) status upon capture. However, participants may also be targeted lawfully by the invader; unlike civilians who benefit from protection under the principle of distinction.
Under an orthodox interpretation of IHL, only the “inhabitants” of an invaded country may participate in a levée. Thus, other groups are nominally excluded, notably “non-resident citizens.” Therefore, a citizen of Country A who emigrated to work in Country B would ordinarily be excluded from returning home to participate in a levée in Country A. This is a flaw in IHL. It ignores the strong patriotic attachment many citizens have to their erstwhile homelands. It is also anachronistic in an era of mass air travel and 24-hour news and instantaneous social media. Moreover, the current approach of categorizing non-resident citizens as civilians who “directly participate in hostilities” (DPH) offers scant legal protection.
Instead, as will now be demonstrated, IHL should be reinterpreted to recognize non-resident citizens returning to defend their homeland as participants in a levée.
IHL Orthodoxy
The most current and authoritative statement on the regulation of levées is found in Geneva Convention III 1949, which extends combatant status to “[i]nhabitants 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.”
The recognition that an individual has “combatant” (as opposed to “civilian”) status is a critical categorization in IHL. As noted by Ilya Nuzov of the International Federation for Human Rights, those with combatant status “are entitled to PoW status and enjoy “combatant immunity” [whereby] they are allowed to directly participate in hostilities and cannot be prosecuted for the mere participation in combat [but may] be targeted at any time by the opposing army’s armed forces, even while not participating in hostilities.”
It is widely acknowledged the acquisition of combatant status through participation in a levée is only open to “inhabitants,” with scholars such as Brigadier General (ret.) David Wallace and Brigadier General Shane Reeves, both of the US Military Academy at West Point, and Jann Kleffner of the Swedish Defense University, confirming that this remains current law. When it comes to the participation of non-resident citizens, the issue is typically either not considered or there is antipathy to their involvement. For example, the United States Department of Defense Law of War Manual states unequivocally that “non-inhabitants who travel to a territory to resist invading forces would not be entitled to participate in a levée en masse.” However, this orthodox position is becoming increasingly untenable.
Patriotism
The orthodox IHL exclusion of non-resident citizens from levées is untenable in part because the underlying basis for the recognition of levée participation is patriotism.
During the Hague Conferences of 1899 and 1907 (the forerunners of the Geneva Conventions 1949), there was discussion about whether provision should be made for levée participation. The United Kingdom proposed a provision preserving the right “an invaded country possesses of fulfilling its duty of offering the most energetic national resistance to the invaders by every means in its power.” Likewise, Switzerland implored delegates, “do not punish love of country; do not adopt rigorous measures against peoples who rise in a mass to defend their soil … we are of [the] opinion that love of country is a virtue which should be cultivated and not suppressed.” More recently, in the context of Ukraine, it is instructive that “the Ukrainian government called on all citizens and ‘patriots’ to take up arms in defense of the country, saying … ‘[w]e give weapons to all patriots!’”
Given that patriotism is the root of the levée and a continued basis for calls to arms, citizens of the invaded country should not be “excluded” from participation simply because they happen to be living overseas when fighting breaks out. Doing so ignores the legitimate familial, political, cultural and historical connections emigrants retain with their birthplace or ancestral homeland. It also ignores the fact that emigrants often maintain houses and other belongings in their country of origin. In other words, non-resident citizens can still have “skin in the game.”
Moreover, as Russell Buchan of the University of Reading and Nicholas Tsagourias of the University of Sheffield note, the orthodox interpretation of the present law did permit “non-Ukrainian[s] … who [were] inhabitants … of the invaded territory … to resist the invading force.” This is ironic as non-citizen inhabitants may have no patriotic bond to the State and may simply be there for work or study. Indeed, there were media reports of such individuals rushing to exit Ukraine when the invasion started. It is odd for the law to view these individuals as automatically having a deeper link to a country than non-resident citizens. Instead, the law should be interpreted to recognize that citizenship is at least as fair a proxy for patriotism as residence.
To frame the point above in the language of international treaty interpretation, for the purposes of the Vienna Convention on the Law of Treaties, it is “manifestly absurd or unreasonable” to interpret the law in such a manner than it ignores the familial, property and other rights of citizens and excludes (typically more strongly connected) non-resident citizens from participation in levées while allowing the participation of (typically less strongly connected) non-citizen inhabitants.
Migration, Mobility, and Media
In addition to failing to look back to take account of the patriotic origins of the levée, the exclusion of non-resident citizens from participation fails to look at the world as it is today and to account for the massive sociological and technological shifts that have influenced the modern world.
The orthodox view of the levée envisages a “quaint” affair involving geographically immobile populations in remote and disconnected frontier areas picking up pitchforks to defend their homes from approaching enemy infantry. However, people today are highly mobile through modern jet plane transportation and migration figures have soared. Moreover, people now have more access to media than ever before and are more connected to each other and to world events. Our reading of IHL needs to adapt to account for these fundamental societal shifts.
According to the United Nations, “migration is a part of today’s globalized world,” which in 2020 saw 281 million people living outside their country of origin: around 3.6% of the global population. When it comes to Ukraine in particular, a (pre-invasion) 2021 report from the United Nations said “[r]ecent estimates put the size of the Ukrainian diaspora at some 7 million, although other estimates consider 12-20 million to be more realistic.” When the invasion began, many thousands of people from this diaspora decided to return to Ukraine. According to the Ukrainian defense minister, Oleksii Reznikov, “66,224 … men returned from abroad [by 5 March 2022] to defend their country from the horde.” This return to the motherland was no doubt facilitated by the cheap modern air travel. Indeed, before Ukrainian airspace was restricted, it was possible to get a return flight from London to Lviv in about two and a half hours at a cost of around 100 GBP.
In addition to diaspora populations being greater in scale and more mobile than in past decades, the individuals who form these populations can be more readily stirred into action through their greater access media sources about world affairs. Diaspora populations all over the world can watch 24-hour news coverage as events unfold in their erstwhile homelands; or learn about what is happening from X and other social media platforms. They are therefore more likely to wish to participate in resistance efforts or to provide humanitarian relief, whereas in the past they simply would not have known about the invasion until long after the event (by which time any levée would have lapsed). Rolling and instant media are already credited with facilitating social change in the context of, for example, the Arab Spring.
In summary, the migration, mobility and media pictures today are wildly different from what they were when the idea of the levée was enshrined into the Geneva Conventions in 1949. Account must be taken of these changes by reinterpreting IHL to accommodate vast, newly mobile and well-informed diaspora populations.
Direct Participation in Hostilities
Even if the above arguments seem compelling in isolation, some may resist the idea of expanding the interpretation of levée participation to include non-resident citizens for fear that it has the potential to make IHL less protective. However, this concern does not bear out in practice.
If those taking part in resistance efforts are not classed as levée participants (i.e. combatants), then – until such time as they are incorporated into the military – they are civilians. This may sound beneficial. However, it is important to point out that civilians may be targeted “for such time as they take a direct part in hostilities.” This flows from the principle of distinction that enables combatants to “direct their operations against” (i.e. target) any enemy actors fighting against them. In other words, if citizens who return home to fight in a resistance are characterized as civilians, they are nonetheless targetable. Moreover, as noted by Nils Melzer of the ICRC, civilians who DPH are not entitled to “combatant privilege [so] do not enjoy immunity from domestic prosecution for lawful acts of war, [and] may be prosecuted … under national law [for] treason, arson, murder, etc.”
In summary, “civilian” status is not a panacea. Civilians who chose to DPH become targetable in just the same way that military personnel are targetable. On the other hand, they do not get the benefit of any of the usual combatant privileges such as general immunity from criminal proceedings or PoW status upon capture. Thus, DPH status is the worst of all worlds. Levée participation, in contrast, comes with all the privileges of combatancy that have been honed for hundreds of years.
Conclusion
The concept of the levée en masse in IHL is an important tool in the arsenal of countries that find themselves on the receiving end of an invading power’s wrath. It allows willing members of their populations to quickly (though temporarily) be endowed with the privileges and responsibilities of combatant status. This is vital in ensuring that the combat conducted by and against these individuals is properly regulated by IHL and does not fall into the legal limbo of DPH, unlawful combatancy or some other ill-defined category.
At present, IHL only allows “inhabitants” of an invaded State to participate in a levée and it excludes “non-resident citizens.” This is wrong. It ignores the patriotic origins of the levée as well as realities of the modern world such as the existence of large diaspora populations, mass air travel and ubiquitous live media coverage of conflict. The law can and must be reinterpreted to allow non-resident citizens to participate in levées.
Elliot Winter is a Senior Lecturer (Associate Professor) in international law at Newcastle University in the United Kingdom.
