Rules of support (weapons
and dual-use goods) without becoming combatant
11.03.2022
One of international humanitarian law (IHL) principles is to avoid or, if possible, minimize the loss of civilian population and civilian facilities. Therefore, each person should know (sometimes it costs a life) which category they belong to - civilians or members of armed forces (also known as combatants or non-combatants), as well as distinguish between civilian and military facilities [2]. Civilians and the Armed Forces of Ukraine are known to permanently interact defending and assisting each other; civilians are subject to mobilization or, if not mobilized, they provide general and military goods, intelligence data, services, e.g. places to stay at night, watch posts, transportation, communication means (for example, Internet access), food etc.
Combatants are the persons who can take a direct part in hostilities and are members of the parties' armed forces [3]. However, not only members of the armed forces, but also the following persons are recognized combatants [4]:
1) the militia and volunteer corps fulfilling the following conditions:
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To be commanded by a person responsible for his subordinates;
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To have a fixed distinctive emblem recognizable at a distance;
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To carry arms openly; and
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To conduct their operations in accordance with the laws and customs of war;
2) The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves (if they carry arms openly and if they respect the laws and customs of war).
Partisans and members of national liberation movements may also be recognized as combatants in some cases.
Non-combatants are the persons who are members of the armed forces, assist them, but do not take direct part in hostilities. They include medical personnel and chaplains, intendants, war correspondents, lawyers etc. Weapons may not be used against such persons if they are performing their direct duties [5]. The persons above are protected by IHL, but lose the protection when they take direct part in hostilities - for the entire period of such participation.
A person’s participation in hostilities justifies attacking them. Thus, it is extremely important to understand, when a civilian may obtain and lose the status of a combatant/non-combatant, and what consequences it may have.
A civilian is a person who does not belong to the abovementioned types of combatants [6]. Civilians are members of neither armed forces nor armed groups [7]. Such persons shall enjoy the protection except for a time period when they are take direct part in hostilities [8].
Of course, one should not overestimate the legal awareness of the Russian army. Ukrainian Mass Media, diplomacy and direct dialogue might change the situation for the better. Nevertheless, even experts cannot reach an agreement on what should be considered as a direct participation in hostilities. Such participation is often described as the acts which are likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack. It may be not only a direct attack on military personnel or machines, but also sabotage, destruction of infrastructural facilities, clearance of lands mined by the enemy, cyberattacks etc. Such acts must be intentional and seek to cause harm.
Moreover, there must be a direct causal link between the act and the caused harm. When civilians cease to participate in hostilities (even if they are getting ready for doing so again), they regain civilian protection9.
How to determine whether a person directly participates in hostilities in each particular case? Here, the following rule may be applied: "direct participation in hostilities" means acts which by their nature or purpose seek to cause real harm to the enemy personnel or property – usually involving the use of weapons or other acts of violence.
However, it is not uncommon when the role played by security guards, liaison or intelligence officers for the benefit of armed forces is deemed as their participation in hostilities (see, e.g. the US and Ecuador military statutes) [10].
Usually, a person will not lose their civilian status if their actions do not directly endanger or cause real harm to the enemy - for instance, a civilian may sell goods to the enemy, sell the location data, or show their approval of the enemy's actions. Providing the armed forces with weapons, munitions, ammunitions, dual-use goods (for example, fuel), and other goods and services bear a particular risk as such actions are very close to "direct participation" in hostilities.
To sum up the above: a civilian loses civilian protection if:
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they cease to be a civilian and became a combatant (for example, if they join the armed forces or other armed groups);
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they did not become a combatant but perform actions that may be viewed as their direct participation in hostilities.
We recommend civilians to follow some rules during military conflicts for protection of their rights and interests:
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if you are not a serviceperson and do not want to join the armed forces, you should not put on a military uniform and have other military identification marks unless it is strictly necessary
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you should not carry weapons which is carried by the armed forces of either party to a conflict, unless strictly necessary
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if you need to take up arms, try to make every effort to show that you are a civilian (for example, tell that you are not a serviceperson and have those arms only to defend yourselves from marauders; do not target military objects)
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if you work at military facilities (for example, plants), do not stay there outside regular hours and when you do not perform necessary works (for example, at night)
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you are generally allowed to help the armed forces, but please note that you may be taken as a combatant and do not try to take part in hostilities (for example, if you supply food, do so at the time when there are no fights)
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giving financial and other support without taking part in hostilities does not result in gaining a combatant status
It is worth saying that the international law rather often applies the following principle: in case of doubt, a person is presumed to be a civilian [11], although laws of some states may have restrictions and exceptions to the rule.
Please note that spies and mercenaries are not considered combatants and do not enjoy respective guarantees. They are criminally prosecutable, however they have the right to humane treatment [12].
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