On 23 July the International Committee of the Red Cross (ICRC) released a statement declaring inter alia that the conflict in eastern Ukraine was of a non-international nature. Yet, one may rightly question whether the conflict has become international, bearing in mind the recent events.
There are chiefly two ways to draw the conclusion that a non-international armed conflict has turned into an international one (see International Criminal Tribunal for the Former Yugoslavia (ICTY), Tadic Appeals Judgment, 15 July 1999, para 84). First, the armed conflict falls within the remit of Common Article 2 to the 1949 Geneva Conventions because two or more High Contracting Parties, i.e. States and in this instance, Russia and Ukraine, have recourse to armed force against each other. In fact, the Geneva Conventions have, as the commentary explains, an extremely low threshold of application:
[i]t makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims.
‘The occurrence of de facto hostilities is sufficient’ to trigger the applicability of the Geneva Conventions. There is no intensity threshold. Recent reports refer to the destruction by Ukrainian forces of columns of Russian military vehicles crossing the border into Ukraine (here), Russian helicopters firing at Ukrainian border guards (here), and Russian soldiers being captured (here). If that information is true then the conflict is deemed to be international, as a result of which all four Geneva Conventions and the 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I) are applicable.
Second, the conflict that was initially of a non-international nature, opposing the ‘rebels’ to the State forces (by the way, IHL does not question the legitimacy of the government) has been internationalised by the actions of Russia. The ICTY explained in the Appeals Judgment in Tadic that a conflict can become international ‘if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.’ (para 84) In other words, the intervention of a foreign State could be direct and/or indirect.
Direct intervention consists in the active participation of the armed forces of a foreign State, engaged with the armed opposition group against the State forces. In the case at hand one would need to demonstrate that the Russian armed forces have been directly engaged along the forces of the self-proclaimed Donetsk People’s Republic (DPR) against the Ukrainian armed forces. The criteria used are (1) the actual presence of troops in the area of the conflict and (2) whether the armed forces of the foreign State are in command of the armed opposition group (see e.g. Naletilic and Martinovic, Judgment, 31 March 2003, para 189). In relation to the conflict in eastern Ukraine it must be shown that Russian troops are directly involved. There have been for a while allegations that elements of the Russian armed forces are present in eastern Ukraine and even that Russian soldiers have been wounded or killed in action. Further it is alleged that a column of military forces displaying the insignia of the DPR entered Ukraine from Russia. Counter-claims that these are only volunteers or active-duty soldiers currently on leave, unrelated to the Russian State, have also been made. Remarkably, in Naletilic and Martinovic the ICTY did not accept that similar soldiers were volunteers, stressing that ‘it is the Republic of Croatia that did in fact organise the sending of the vast majority of them, while attempting to conceal their presence by asking them, for example to replace their uniforms and insignia for those of the [armed opposition group]’. (para 195) In the same decision the ICTY also noted that the troops were still receiving a salary from Croatia which had admitted to the presence of regular units in Bosnia-Herzegovina (para 195). Whether the Russian troops alleged to be in eastern Ukraine draw Russian wages is unknown but likely. That being said, unlike for the presence of ‘unmarked troops’ in Crimea, Russia has long denied any involvement in the conflict in eastern Ukraine (e.g. here). More importantly, it must be shown that the Russian armed forces are in command of the armed opposition group. This is an allegation that does not seem to have been made by any involved parties all the more as there has been some changes in the leadership of the armed opposition groups, replacing Russians by individuals from the DPR (here). Thus it is not possible to claim that the conflict in eastern Ukraine is international due to the alleged direct intervention of Russia.
What about indirect intervention? The relevant test, that of ‘overall control’ of a foreign State, is spelled out in the Tadic case:
[C]ontrol by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). … The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts. (para 137)
The overall control test has been reiterated on numerous occasions before the ICTY (e.g, Naletilic and Martinovic, para 184; Blaskic, Judgment, 3 March 2000, para 100) as well as adopted by the International Criminal Court in Lubanga (ICC, Lubanga, Judgment, 14 March 2012, para 541). Admittedly, the application of the test is not easy as it must be proven that the State has not only ‘provided financial and training assistance, military equipment and operation support’ but also ‘participated in the organisation, co-ordination or planning of military operations.’ (Naletilic and Martinovic, para 198). The first part is generally fulfilled by showing that financial and logistical support, and military training is provided. Whilst there are few doubts that Russia has provided such assistance to the armed opposition group, it is certainly more difficult to ascertain that it has taken an active part in the military operations. The ICTY has developed a number of indicators to gauge whether a foreign State is ‘organising, coordinating or planning the military actions’. These can be chiefly put into two categories. In terms of personnel, the foreign State and the armed opposition share personnel (Blaskic, paras 114-117), the wages are paid by the foreign State (Blaskic, para 101) and the military structure and ranks are similar, if not identical (Tadic, para 151). In terms of decision making, decisions are coordinated via e.g. meetings (Blaskic, para 118), the foreign State issues orders for troop movements and military strategies (Tadic, para 151; Naletilic, para 201), the troops are pursuing the same goal (Naletilic, para 200; Blaskic, paras 108-110) and the foreign State harbours ambitions in respect of the territory where the armed conflict takes place (Blaskic, paras 103-106). These are only indicators, i.e. it is not a finite list and there is no need to prove that all ‘indicators’ are fulfilled. At this stage there is simply too much conflicting information on the events in eastern Ukraine to be able to form an informed opinion on whether Russia’s alleged indirect intervention has turned the conflict into an international one.
To complicate matters, the conflict can be split into several armed conflicts depending on the time, the place and the parties involved. As the ICTY explained in the Tadic Appeals Judgment, the conflict can, ‘depending upon the circumstances, be international in character alongside an internal armed conflict’. (para 84) For example, whilst confrontation between Ukrainian and Russian State forces would lead to the conflict being classified as international in one part of the Ukrainian territory, hostilities between the Ukrainian armed forces and the forces of the self-proclaimed Donetsk People’s Republic would be categorised as a non-international armed conflict.
As a conclusion, due to the large amount of claims and counter-claims that riddle the news media on the conflict in eastern Ukraine it is difficult to draw straight-forward, persuasive conclusions as to whether the conflict is international or has been internationalised.