Fighters in Russian Border Region Belgorod: "Legal terms that con­tra­dict each other"

Simon Gauseweg is research assistant at the European University Viadrina Frankfurt (Oder) at the Chair of Public Law, in particular Public International Law, European Law and Foreign Constitutional Law.

LTO: Mr Gauseweg, fighting continued for more than 24 hours in the Russian border region of Belgorod. Russia has now officially lifted the "state of terror", but on Wednesday the governor of the region reported new drone attacks. The groups "Legion of Freedom of Russia" and "Russian Volunteer Corps" are said to be responsible. Who are these fighters?

Simon Gauseweg: The reports are contradictory. It seems certain that the two organisations are militarily equipped and trained and were able to fight border troops and troops of the Russian army. At least the "Legion of Freedom of Russia" is classified as a terrorist organisation within Russia. The "Russian Volunteer Corps" is reported to be right-wing extremist. According to what we know so far, the fighters act as being independent organised groups. However, Russia accuses them of being sent by Ukraine.

What are the fighters in Belgorod aiming at?

It seems to me that Russia is being paraded here. In January 2022, people spoke of the Russian army as the second most powerful army in the world. In February and March of last year, Russia failed to take Kyiv and people joked about the second most powerful army in Ukraine. 

Now, when gunmen capture a Russian border post, border troops and army fight, and the Russian army is forced to evacuate tactical nuclear weapons from a nearby base, among other things, it is clear that there will be gloating. In any case, the intention is probably to demoralise the Russian armed forces and also the civilian population, demonstrating to them that Russia cannot ensure the security of its borders and its population. Another objective of the operation could be the overstretching of Russian forces on the long Ukrainian-Russian border.

Combatants or organised armed groups?

How are these fighters to be classified under international law?

That is difficult to say. Russia attributes the fighters to the Ukrainian armed forces, Ukraine denies this. If Russia's view were correct, it would suggest itself to classify them as combatants. According to Article 43 No. 2 of the Additional Protocol (I) to the Geneva Conventions, combatants are members of the armed forces of a party to the conflict. This is indisputably the case if the combatants are actually integrated into the Ukrainian army. Then they are Ukrainian combatants fighting in the international armed conflict between Russia and Ukraine.

And if the fighters are not integrated into the Ukrainian army?

If the fighters do not belong to Ukraine, but the "Legion of Freedom of Russia" and the "Russian Volunteer Corps" are indeed acting entirely on their own, one wold rather regard them as organised armed groups within the framework of a non-international armed conflict. In the media, such fighters are often called "insurgents", "rebels" or even "resistance fighters".

The groups attacked Russian military facilities in Belgorod, Russia launched an "anti-terrorist operation" against it and declared it over on Tuesday. What would be the legal basis for this "operation"?

Russia is throwing around legal terms – this is also a recurring pattern in Russian communication – that contradict each other in terms of content.

Either the fighters are Ukrainian combatants or at least resistance fighters on the Ukrainian side. In this case, Russia is conducting combat operations within an international armed conflict - in other words, it is waging war. Or the groups are independent, non-state actors. In that case, they could be regarded as "terrorists" and "anti-terrorist operations" could be carried out. But then Ukraine would have nothing to do with it.

Decisive factor: "Effective control" over non-state actors

Who do you think is responsible for the fighters?

I do not know. Of course, it is obvious to assume that Ukraine is responsible. Ukraine benefits the most from the incidents. In this context, attribution can also be independent of the affiliation to the armed forces.

The decisive factor is whether a state exercises "effective control" over a non-state actor. This standard was established by the International Court of Justice in the case of Nicaragua against the USA in 1986. At the time, the USA had trained, armed, equipped, financed and supplied rebels inside Nicaragua. However, because they thereby exercised effective control over their operations, the court attributed their actions to the US. The International Criminal Tribunal for the former Yugoslavia (ICTY) used a similar test of "overall control" in the case against Dusko Tadić in 1995. If actors operate who do not formally belong to Ukraine, but who are not capable of acting without Ukraine's support, then their actions are to be attributed to Ukraine under international law. However, Ukraine is already defending itself against Russian aggression.

What would be the legal consequence if Ukraine is indeed responsible?

There would be no proper legal consequence. If the support of the fighters fulfills the "effective control" criteria of the ICJ’s Nicaragua judgement, one could assume a violation of the prohibition of the use of force. But this would be justified by Ukraine’s "inherent right to self-defense" under Article 51 of the UN Charter. If the "overall control" criteria of the ICTY’s Tadić judgement are fulfilled, Ukraine could also be responsible for individual actions of these groups. But, again, anything short of war crimes are justified, as Russia started the war in the first place.

Do the incidents in Belgorod change anything in the major situation under international law, i.e. can Russia now legitimise military actions differently on the territory of Ukraine as well?

No. The only thing Russia can legitimately do is to completely withdraw from Ukraine. But that has been the case since 2014.

Can the fighters in Belgorod become prisoners of war?

According to the Geneva Conventions, combatants who fall into the power of an opposing party are prisoners of war. If the combatants are indeed Russian citizens, can they also invoke prisoner of war status?

This is a very interesting constellation that probably does not happen too often. But first it depends on whether the fighters are fighting on the Ukrainian side or for themselves. Only in the case of fighting on Ukraine's side one can relate the fighting to the international armed conflict between Russia and Ukraine. And only in the international armed conflict there are prisoners of war. The wording of Art. 4 of the Third Geneva Convention as well as Art. 44 No. 1 of Protocol Additional (I) to the Geneva Conventions indicate that a state must also treat its own nationals as prisoners of war. Especially if there is another nationality.

How does this relate to sovereignty of states over their nationals?

There is a conflict. The purpose of captivity is to prevent the enemy in conflict from retaliating against the soldiers who fought against them. Usually, these are soldiers of another state and the soldiers should only be subject to the sovereignty of that state. In the constellation mentioned, however, the state already exercises personnel sovereignty. This could argue for not granting unlimited protection.

In this particular conflict, the constellation also occurs in reverse. The "armed forces" of the so-called "people's republics" in Luhansk and Donetsk are recruited from the local population – i.e. Ukrainians. It will be very interesting to see how the two states deal with this and whether they uniformly see the conflicts as an international armed conflict or whether they assume parallel armed conflicts of an international and non-international nature.

What rights do prisoners of war have under international humanitarian law?

Each party to the conflict has the right to take combatants of the opposing parties into custody and thus prevent them from fighting. This is why prisoners of war exist. Therefore, not much may happen to prisoners of war. For example, they may not be detained together with other prisoners. And in particular, they may not be held liable, especially prosecuted, for lawful participation in hostilities. The only exception to this is war crimes, as committing war crimes no longer constitute lawful participation in hostilities.

"As in the Kremlin's script for annexing foreign territories"

The situation has some parallels to the pro-Russian "rebels" who allegedly fought for independence from Ukraine in the Luhansk and Donetsk regions in 2014. Russia also denied any responsibility. How do you assess this?

The events in Belgorod follow exactly the Kremlin's script for annexing foreign territories. This could be seen in Georgia in 2008, in Crimea in 2014, in Luhansk and Donetsk from 2014 to 2022: a non-international armed conflict arises, which Russia supposedly wants to pacify and thus separates a part from the national territory of a neighbour. In 2014, too, well-equipped gunmen appeared in the Donbass and especially in Crimea, posing as local militia. 

And when Ukrainian presidential advisor Mikhailo Podolyak tweets that, as one knows, tanks can be bought in any Russian military shop, this is a replica of Russian pronouncements from 2014. When the "little green men" in Crimea were attributed to Russia with reference to their modern armament and equipment, the Kremlin denied it, saying that these weapons could be bought in Ukrainian military shops. Whoever planned this action goes beyond innuendo and holds a mirror up to the Kremlin here.

The fighters were able to penetrate several kilometres into Russian territory. Is a new dimension of war now beginning?

The war has been in full swing for over a year. What we may see is Ukraine regaining the initiative. That would then be a new temporal phase. But I do not see a new dimension.

Thank you very much for the interview.

This Text is a translated version of the Interview published in German on 25 May 2023.