Possible claims of immunity

1. Combatant immunity

Combatant immunity is a rule of international law stipulating that countries may not prosecute members of the armed forces of another state, unless those persons have committed war crimes.

During an armed conflict, domestic criminal law continues to apply. Any person who commits violence during an armed conflict can therefore in principle still be prosecuted under criminal law, in the same way as during peacetime. Only persons belonging to a state’s armed forces can be subject to an exemption under international law, namely combatant immunity. Under that exemption, members of a state’s armed forces enjoy immunity – and can therefore not be prosecuted in another country – for participation in hostilities during an armed conflict. That immunity only exists in so far as the hostilities they participated in were in accordance with international humanitarian law (IHL). If members of the armed forces do not abide by IHL, they can be prosecuted for those actions.
 
Combatant immunity (CI) derives from the so-called combatant privilege laid down in article 43, paragraph 2 of the Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (AP I).[1]

CI constitutes a personal ground for immunity from prosecution. This means that CI must always be assessed separately for each individual. If a group of fighters commit acts of violence in association, it is possible that some of them can claim CI, but others cannot.

It is important to realize that combatant immunity applies to members of the armed forces of a state and not to civilians. [2]

It is a criminal offence when civilians take up arms and use violence.[3] This applies when that violence is directed against the authorities of their own country, and also if they cross the border and use violence against the authorities of another country. Exceptions to these rules are subject to strict conditions. 

It is essential that the conditions of combatant immunity, which have been developed over the centuries in international humanitarian law, are strictly upheld. When they are not, war becomes a licence of violence of all against all. Without conditions, without rules and without accountability after the fact.

1.1 Legal framework

1.1.1 Nature of the armed conflict

Combatant immunity exists only in international armed conflicts. In non-international armed conflicts, between a state and one or more armed groups, CI does not exist.[4]

1.1.2  Further criteria for Combatant immunity

A person who takes part in hostilities in an international armed conflict is not automatically a combatant. [5]

The designation ‘combatant’ indicates a status under IHL that is granted only to persons who meet strict conditions. It follows from article 43, paragraph 2 of AP I that combatants have the right to participate in hostilities in an international armed conflict. The article also states that only members of the armed forces of a party to an armed conflict can be considered as combatants.

In order to assess whether a defendant can claim CI, it is necessary to determine whether that defendant can be considered a member of the armed forces of a party to an armed conflict, and thus a combatant. For a defendant who was a member of an armed group fighting in an international armed conflict the following conditions must be fulfilled:

• the defendant’s group (recognizably) belonged to the armed forces of a (State) party to the armed conflict (the requirement of ‘belonging to a party to the conflict');
• the defendant’s group was under a command that was responsible to a (State) party to the armed conflict for the conduct of its subordinates (a ‘responsible command’);
• the defendant’s armed group or unit was subject to an internal disciplinary system which, inter alia, must enforce compliance with the rules of international law applicable in armed conflict;
• the defendant carried his arms openly; and
• the charges brought were in accordance with the rules of IHL.

These conditions are cumulative; all must be fulfilled in order to establish that CI applies to a defendant. As mentioned, it is by no means the case that anyone who engages in hostilities in an international conflict can claim CI, solely on the basis of the nature of the armed conflict.[6] 

The conditions for CI are explained more extensively below.

1.1.2.1 Belonging to a party to a conflict

The condition that an armed group in an international armed conflict must ‘belong to’ a state is a fundamental rule of international law and is described as follows by the International Committee of the Red Cross (ICRC):

‘Groups engaging in organized armed violence against a party to an international armed conflict without belonging to another party to the same conflict cannot be regarded as members of the armed forces of a party to that conflict, whether under Additional Protocol I, the Hague Regulations, or the Geneva Conventions.’[7]

 The necessary relationship between the defendant’s group and the (State) party (no longer) has to be announced, but must be mutually accepted. It must also be apparent to other parties in the armed conflict. The latter is necessary because IHL requires State parties to armed conflicts to accept responsibility for the acts of violence of their combatants and, if necessary, to compensate damages.[8] Accountability and compensation are impossible if the relationships between States and those who fight for them are concealed. IHL has therefore always required that it be clear for which party a combatant is fighting, even if that combatant belongs to an armed group that is deployed by a state in addition to, or instead of, its regular armed forces. This requirement is explicitly expressed by the phrase ‘belonging to a Party to the conflict’ in article 4 of the Third Geneva Convention relative to the Treatment of Prisoners of War (GC III). It is equally considered to be an implicit requirement of article 43 of AP I and a requirement under customary international law for combatant status.[9]

The criterion of ‘belonging to’ in the context of CI is different from the criterion of ‘overall control’. Overall control is a criterion used to establish whether a conflict can be considered an international armed conflict.[10]  As such, overall control is used to determine whether a person can be held individually liable for violating the rules that apply in such conflicts. The requirement of ‘belonging to’, on the other hand, is a criterion used to determine who belongs to the armed forces and can thus be designated a combatant. This requires openness on the part of both the armed group and the state under whose responsibility that group is fighting. Not only must there be control by the state, but that control must also be apparent to the opposing party. For CI to be granted it is necessary to establish not only that a (hierarchical) relationship in fact exists, but also that this relationship is apparent to others involved in the conflict. 

Relevant sources:

ICRC (1960)

“The drafters of the 1949 Convention, like those of the Hague Convention, considered that it was unnecessary to specify the sign which members of armed forces should have for purposes of recognition. It is the duty of each State to take steps so that members of its armed forces can be immediately recognized as such and to see to it that they are easily distinguishable from members of the enemy armed forces or from civilians. The Convention does not provide for any reciprocal notification of uniforms or insignia, but merely assumes that such items will be well known and that there can be no room for doubt.” [11]

Meron (1970)

‘Whatever the formal arrangements between a resistance movement and a Party to the conflict might be, it is required that a State should regard the resistance movement as belonging to it and subject to its policy and command. Indeed, that State must be prepared to accept international responsibility for the acts of the resistance group, just as it must bear responsibility for the acts of its regular forces. The resistance group, on the other hand, must regard itself as subordinate to a State, and must accept its overall policy and command, especially as regards respect for the laws and customs of war. The requirement of belonging to a Party to the conflict must have these consequences, or it makes no sense at all.’ [12]

ICRC (2009)

“The concept of ‘belonging to’ requires at least a de facto relationship between an organized armed group and a party to the conflict. This relationship may be officially declared, but may also be expressed through tacit agreement or conclusive behaviour that makes clear for which party the group is fighting.” [13]

Zamir (2017)

“The essence of the requirement of belonging should be interpreted as follows: (i) the foreign State must accept the non-state group as belonging to it and must take responsibility for the behaviour of that group - this acceptance may be express or tacit; (ii) the non-state group must accept the overall command of the foreign state. […] In other words, even if a state is held responsible according to the rules of state responsibility for the acts of the non-state group but it declines to accept this responsibility then the requirement of ‘belonging’ cannot be satisfied.’’[14]

Various national military manuals and regulations cited by the ICRC as state practice for the definition of armed forces, include:[15] 

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General (1999)

“Militias, volunteer corps and organized resistance movements must “belong” to a party to the conflict in the sense that they are acknowledged by that party as fighting on its behalf or in its support.” [16]

Côte d’Ivoire, Teaching Manual (2007)

“The militias, volunteer corps and organized resistance movements must “belong” to a Party to a conflict in the sense that they are recognized by that party as combatants on its behalf or in its support.”

1.1.2.2. Responsible command

According to article 43, paragraph 1 of AP I, CI is granted only to members of armed groups and units ‘which are under a command responsible to that Party for the conduct of its subordinates’.[17]  This is the requirement of a responsible command. 

It is the commanders who are in command of their subordinates and who must exercise that command in a responsible manner. The commander can and must ensure that the actions of their subordinates are in accordance with IHL. In IHL this hierarchy is considered essential in order to prevent excesses in warfare. Therefore, a responsible command can exist only if the senior figures in question are familiar with IHL.[18]

Those commanders in turn are responsible to the state for which they are fighting. After all, the leadership of the group or unit must be responsible to its own State party for the conduct of its subordinates and that conduct must be in accordance with IHL. Members of armed groups within the meaning of article 43 of AP I are thus subordinate both to their commanders and to the state for which they are fighting.

Various national military manuals and regulations cited by the ICRC as state practice for the definition of armed forces, including: [19]

Kenya, LOAC Manual (1997)

“The command of the armed forces must be responsible to the belligerent Party to which it belongs”

The Netherlands, Military Manual (2005)

“The armed forces of a party to a conflict consist of all organized armed forces, groups and units which are: under one command (…) This not only applies to the armed forces of States, but also to members of resistance and liberation armies. The command need not consist of one person, but must be responsible for subordinates’ behaviour towards the party to the conflict (generally the State).”

United Kingdom, Manual of the Law of Armed Conflict (2004)

“The essential feature of the requirement [of responsible command] is that the commander should accept responsibility for the acts of his subordinates and equally his responsibility to, and his duty of obedience to the orders of, the power or authority upon which he depends. Partisans or paramilitary forces acting on their own initiative do not comply with that requirement and so are not members of an armed force.”

Sierra Leone, Instructor Manual (2007)

“the term armed forces ‘refers to armed forces of a state and party to the conflict which consists of all organized units and personnel under command responsible to the party to the conflict for the behaviour/conduct of its subordinates.”

Chad, Instructor’s Manual (2006)

“The armed forces of a State consist of all the forces, all the armed and organized groups and units placed under a commander who is responsible for the conduct of his subordinates with regard to a belligerent.”

1.1.2.3   Internal disciplinary system and compliance with IHL

In order to be considered part of the armed forces, an armed group must not only have a responsible command, but also be subject to an internal disciplinary system that enforces the rules of IHL.

Relevant sources:[20]

ICRC (1987)

“Anyone who participates directly in hostilities without being subordinate to an organized movement under a Party to the conflict, and enforcing compliance with these rules, is a civilian who can be punished for the sole fact that he has taken up arms (…) A combatant does not lose his right to the status of prisoner of war in case of capture for breaches of the law of armed conflict which he may have committed (Article 44 -- ' Combatants and prisoners of war, ' paragraph 2). However, the organization or armed forces to which he belongs are subject to the rules of that law without restriction (Article 43 -- ' Armed forces, ' paragraph 1, second sentence). His own disqualification for the status of combatant and of prisoner of war depends on the possible disqualification of the armed forces to which he belongs. This point has never been doubted, even if individually the member of the said organization or armed force complies with the conditions which he is capable of fulfilling.”[21]

The national military manuals and regulations of almost every country in the world require members of the armed forces to respect IHL and enforce IHL by means of an internal disciplinary system. These military manuals and regulations are cited by the ICRC as state practice for the definition of armed forces.[22]  Various countries explain the requirements of article 43 of AP I in further detail, including:

Burkina Faso, Disciplinary Regulations (1994)

“It is prohibited to consider members of the armed forces or volunteer militias, including organized resistance movements, as “regular combatants” unless they are under a responsible command, wear a distinctive sign, carry arms openly and respect the laws and customs of war.”

France, Disciplinary Regulations (1975)

“Soldiers in combat must not consider members of the armed forces or volunteer militias, including organized resistance movements, as combatants unless they are under a responsible command, wear a distinctive sign, carry arms openly and respect the laws and customs of war.”

Israel, Manual on the Laws of War (1998)

“soldiers serving in the army (regular and reserve) or in well-ordered militia forces (…) must (…) be led by a commander and be part of an organization with a chain of command. (…) It is incumbent on combatants to behave in compliance with the rules and customs of war.”

Netherlands, Military Manual (2005)

“The armed forces of a party to a conflict consist of all organized armed forces, groups and units which are: under one command; and subject to an internal disciplinary system. This not only applies to the armed forces of States, but also to members of resistance and liberation armies. (…) The internal disciplinary system must ensure obedience to the rules of the humanitarian law of war.”

Nigeria, Military Manual (1994)

“the armed forces of a state and of a party to a conflict consist of all organised units and personnel which are under a command responsible for the behaviour of its subordinates and each state and belligerent party must determine the categories of persons and objects belonging to its armed forces … Furthermore, the armed forces shall be subject to an internal disciplinary system in order to uphold and enforce the law of war.”

United Kingdom, Manual of the Law of Armed Conflict (2004)

“Any force, group, or unit which in the course of its operations systematically fails to obey the law runs the risk of being regarded as not being subject to an effective disciplinary system and therefore not being a legally recognizable armed force under international law. The members of such a force would not be entitled to combatant status”

1.1.2.4 Distinguishing from the civilian population

A further condition for CI is that the person participating in hostilities distinguishes himself from the civilian population.[23]  We will not discuss this requirement in further detail here, as it does not appear to be relevant to any decision to be made by the court in the present case. 

1.1.2.5 Charges concerning actions in accordance with IHL

The scope of combatant immunity is limited to legitimate participation in hostilities. It remains possible to prosecute persons for participating in hostilities while contravening IHL. International law gives states the freedom to prosecute violations of IHL however they wish, as long as the criminal prosecution is in keeping with the severity of the offences.[24]  In criminal prosecutions for war crimes, defendants in many countries are regularly charged with offences under ordinary criminal law.[25]  

The fact that an offence committed during an armed conflict could be prosecuted as a war crime does not mean that there is an obligation under domestic or international law to do so. Therefore combatant immunity does not protect a person broadly against any criminal prosecution in which they are charged with an offence under general criminal law, but only against criminal prosecution by another country for actions that were in accordance with IHL.[26]  One of the requirements, therefore, for successfully invoking combatant immunity is that the charges in question concern actions that were in accordance with IHL.

1.2    Burden of proof

Strict conditions apply to establishing a ground for immunity from prosecution, because, in the words of The Hague Court of Appeal, ‘the Public Prosecution Service’s right to prosecute is one of the key anchors of the criminal justice system’.[27]  This means that if it cannot immediately be determined beyond doubt whether the conditions for CI have in fact been fulfilled, an assessment of the merits of the relevant facts is necessary. It is firstly up to the defendant (and the state on whose behalf the defendant participated in the international armed conflict in question) to provide clarity regarding the relevant facts, such as the command structure and the existence of an internal disciplinary system that enforces compliance with IHL. After all, they possess the most relevant information about their own organization.[28] 

1.3    Investigation of the facts

1.3.1    Nature of the armed conflict

In many other criminal cases, an investigation concerning CI has been limited to an investigation of the nature of the armed conflict in which the defendants were operating. When it was established that there was a non-international armed conflict, that in itself meant that CI was not applicable.[29]  That path does not appear to be immediately open in this investigation. The investigation has shown that there is conflicting information as to whether the defendants and their group were in fact under the control of the Russian Federation, but the strongest indications appear to be that this was indeed the case. In the present case it can therefore not easily be determined that the nature of the armed conflict between Ukraine and the so-called Donetsk People’s Republic (hereinafter referred to as DPR) in itself is a reason to dismiss a claim to CI. 

The course of the armed conflict and the role of the Russian Federation in it have been extensively investigated. The Russian government has consistently denied participating in the armed conflict in eastern Ukraine. It has also consistently denied any (hierarchical) relationship with the DPR and the LPR. However, in the course of the investigation it has become increasingly clear that the Russian Federation was closely involved in the armed conflict – in any event in the period relevant to the investigation, around 17 July 2014. For instance, the Russian Federation provided military support to the armed groups via the border crossings controlled by them, including the Buk TELAR with which MH17 was shot down. It also issued secure communications equipment with which it communicated with the groups and it contributed to the recruitment and payment of fighters. Russian officials were also involved in the organization and coordination of the armed groups fighting the Ukrainian army. In addition the Russian Federation participated directly in the armed conflict in eastern Ukraine, for instance by carrying out artillery bombardments and providing air support, as well as by deploying military personnel over the border.

1.3.2    Belonging to a party to the conflict

As set out earlier, in order for CI to be applicable, a defendant’s armed group – in this case the DPR – must have a (hierarchical) relationship with a State party to an international armed conflict. That relationship must be apparent to the other parties to the conflict.

In this regard, the investigation first centred on how the DPR leadership themselves characterize their armed group. It was noted that, in interviews, members of the DPR emphasized that they are volunteers who are not directed by the Russian Federation. Some, including the defendants Girkin and Kharchenko, have also said in interviews that they are not military personnel. On 14 November 2019 the JIT made an appeal to witnesses which focused specifically on whether leaders of the DPR were under the command of the Russian Federation. The call for witnesses included the following questions. ‘Who gave orders to Girkin and Borodai in the summer of 2014? What was the role of members of the ‘Staff’ in this?.[30  The defendant Girkin responded as follows on his VKontakte account:

‘Non-esteemed Dutch morons! Try to get it straight in your heads (I understand – it’s difficult, but try anyway): in Donetsk I had my “own” Staff. My own. Which was led by me personally. With which I led the fighting of the DNR fighters against the Ukro punitive troops. And the “role” of the staff members was to organise the performance of the tasks which I gave to the subordinate militia units which defended their Fatherland and their own Russian people against the Ukro Nazi and their henchmen. (…)’

The picture is not entirely clear. Occasionally, defendant Girkin in particular implies that in 2014 he did not make his own decisions, but received orders from the Russian Federation. Nevertheless, that relationship is generally denied, including by him. To date, none of the four defendants nor any other DPR leader has claimed to be a combatant fighting against Ukraine under the command of the Russian Federation. 

Secondly, the investigation examined the remarks of the Russian Federation’s government on this matter. That investigation has shown that, both in public comments and in interstate proceedings before the European Court of Human Rights, the Russian Federation expressly denies that there was an international armed conflict in Ukraine, expressly denies being a party to the armed conflict in Ukraine, expressly denies that the DPR is under the command of the Russian Federation, and expressly denies that defendant Girkin and his men were acting on behalf of the Russian Federation in 2014.[31] 

Therefore, no (hierarchical) relationship that is apparent to others existed between the DPR and the Russian Federation. Nor did the Russian Federation accept responsibility for the actions of the DPR, to which all four defendants belonged. On the contrary, to this day both the DPR and the Russian Federation continue to publicly and consistently deny the existence of a (hierarchical) relationship.

1.3.3    Internal disciplinary system and compliance with IHL

The investigation also examined whether in and around July 2014 the defendants’ armed group, the DPR, was subject to an internal disciplinary system that enforced compliance with IHL. 

On the basis of the investigation to date, the Public Prosecution Service’s provisional conclusion is that in and around July 2014 the DPR violated IHL on such a large scale and so systematically that it cannot be said that there was a functioning internal disciplinary system within the DPR. This is underlined by the personal involvement in many war crimes of the DPR’s highest commanders, including Girkin, and the absence of disciplinary measures against such perpetrators in the DPR. 

1.4    Initial conclusions on combatant immunity

In the Public Prosecution Service’s view, the investigation to date leads to the following initial conclusions. 

To successfully claim combatant immunity, inter alia the following must be established:

a) The existence of an international armed conflict.

b) That the defendant’s group or unit recognisably belonged to the armed forces of a State party to the armed conflict (the requirement of ‘belonging to a Party to the conflict').

c) That the defendant’s group or unit was under a command that was responsible to a (State) party to the armed conflict for the conduct of its subordinates (a ‘responsible command’).

d)  The existence of an internal disciplinary system to enforce compliance with IHL.

The case file in its current form reveals the following:

• None of the defendants claims combatant immunity or acknowledges (through the DPR) any control or command over them by the Russian Federation.
• A (hierarchical) relationship between the DPR and the Russian Federation has been expressly and systematically denied by both the DPR and the Russian Federation.
• In July 2014 there was no internal disciplinary system enforcing compliance with IHL within the DPR. On the contrary, the DPR (leadership) committed systematic, large-scale violations of IHL.

These initial conclusions show that there are at least two separate reasons why the defendants in this case cannot claim CI:

• The absence of a (hierarchical) relationship between the DPR and the Russian Federation that is recognizable to others.
• The absence of a functioning internal disciplinary system in the DPR.

Of course, the defendants’ views on this matter should ideally be expressed as clearly as possible in the case file. To that end we have firstly tried to collect as many relevant comments by the defendants as possible, for instance in interviews, and add them to the case file. In addition, we have requested relevant information from the Russian Federation, for instance whether the defendant Dubinskiy was working for the Russian government in July 2014. The Russian Federation refuses to answer that question. We have also asked the Russian Federation to interview the defendants who are living there about the subjects relevant to the assessment of possible combatant immunity. To date we have received no response to this request. As we have noted, the deputy Prosecutor General of the Russian Federation has stated that he sees no reason to interview Russian citizens. Subsequently, the suspects residing in the Russian Federation have not taken up the invitation to be heard as a witness and have declined to answer questions.

In simpler terms:

In this case the Public Prosecution Service concludes on the basis of the investigation to date that the defendants were not regular military personnel. Their group did not fight under the acknowledged responsibility of a state, nor did it show any respect for IHL. Their group used lawless violence on a large scale, which is strictly prohibited by IHL. For these reasons alone the Public Prosecution Service believes that they are ineligible for immunity and that they can be tried under ordinary Dutch criminal law. Under Dutch criminal law, you are not allowed to shoot down aircraft or kill people, regardless of whether they are civilians or military personnel. These are criminal offences, i.e. murder and causing an aircraft to crash resulting in death. 

The Public Prosecution Service believes that the case file in its current form contains sufficient information for the court to decide whether combatant immunity could apply in this case. We think that question can be answered without having to establish the nature of the armed conflict in which the defendants were fighting. After all, if it is clear that the defendants in any event do not fulfil the conditions for combatant status, there is no sense in establishing the nature of the armed conflict during these proceedings. However, if the court does consider it necessary to establish the nature of the conflict, we believe there is sufficient information in the case file for this to be done too.

2. Other forms of immunity

Besides combatant immunity there are also other forms of immunity for government officials under international law. Diplomats and the most senior officials of states, for instance, also enjoy immunity. In addition, in some cases a state can invoke its own immunity in order to block proceedings against its officials if it believes that those proceedings in fact amount to holding the state itself to account. This is referred to as functional immunity. States are not allowed to try each other, just as members of the general public are not allowed to try each other. If states wish to hold one another accountable, they must do so before international courts, not in their own domestic courts.

In order to properly assess the possible applicability of functional immunity, it is important to start with noting that this is a form of state immunity that is invoked by a state in proceedings against one of its officials. It is not an immunity of the individual official himself. This entails procedural requirements that must be met in order for functional immunity to be granted in criminal proceedings. These requirements were formulated as follows by the International Court of Justice in the case of Djibouti v. France: 

‘The State which seeks to claim immunity for one of its State organs is expected to notify the authorities of the other State concerned. This would allow the court of the forum State to ensure that it does not fail to respect any entitlement to immunity and might thereby engage the responsibility of that State. Further, the State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs.’ [32]

With specific regard to the present case, this means that a discussion on the possibility of functional immunity would become relevant only if the Russian Federation were to state in writing that in July 2014 the defendants were acting on behalf of the Russian state, that the Russian Federation wishes to invoke functional immunity in these proceedings and that it thus takes responsibility itself for what happened on 17 July 2014. As we have said, the opposite has been the case to date. 

Secondly, it is important to note that possible immunity in relation to hostilities must be assessed substantively under the rules of IHL. We have explained what strict conditions have been developed over time in that area of international law. A study by the Red Cross has extensively described how those conditions are laid down in treaties and how they are implemented in practice in almost every country in the world.[33]  All of this is not compatible with a situation in which a state could invoke functional immunity in relation to hostilities for officials other than combatants. If that were the case, there would be no use in formulating conditions that combatants must fulfil in order to be able to claim combatant immunity. 

The Public Prosecution Service believes that it is clear on the basis of these two points alone that in these criminal proceedings functional immunity cannot be claimed in respect of the defendants. We will therefore keep our explanation on this subject brief. International law with regard to forms of immunity is complex. It is important to distinguish between personal and functional immunity and between different categories of public officials to whom different rules apply. If necessary we can discuss this in more detail. If the court, unlike the Public Prosecution Service, believes that there are currently grounds to think that the defendants could indeed possibly claim immunity, we would appreciate the opportunity to comment in greater detail on this subject before the court makes a decision on this matter. 

3. Conclusion

In short, considerable efforts have been made to gather as much relevant information as possible about the roles of the defendants and add it to the case file. There is no reason to assume that the defendants can claim any form of immunity. It would be desirable for the defendants to add their views to the case file, but they do of course have the right to remain silent. The choice is theirs. The Public Prosecution Service believes that with regard to the roles of the individual defendants too, the case file contains sufficient information for the merits of the case to be assessed.  

Footnotes

[1] Article 43 of AP I reads as follows:

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.
2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.
3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.”

The Russian Federation, Ukraine and the Netherlands are parties to AP I.

[2] An exception to this rule is the levée en masse, but that is not relevant to this case. See art. 4 (A) 6 Geneva Convention III.

[3] ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 1987, p. 514 (“Anyone who participates directly in hostilities without being subordinate to an organized movement under a Party to the conflict, and enforcing compliance with these rules, is a civilian who can be punished for the sole fact that he has taken up arms…”). 

[4] Supreme Court of the Netherlands, 4 April 2017, ECLI:NL:HR:2017:576, § 4.4.

[5] Civilians can also ‘directly participate in hostilities’. E.g. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule6.

[6] Supreme Court of the Netherlands, 5 September 2006, ECLI:NL:HR:2006:AY3440, § 4.5.

 [7[ ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities 2009, casebook.icrc.org/case-study/icrc-interpretive-guidance-notion-direct-participation-hostilities.

[8] E.g. art. 91 AP I and commentary in ICRC 1987.

[9] ICRC 1987, commentary to art. 43 AP 1 (“If a resistance movement cannot be considered as a Party to the conflict within the meaning of the Protocol, it must belong to a Party to the conflict, within the meaning of Article 4A [ Link ] (2) of the Third Convention.”) Henckaerts e.a., Customary International Humanitarian Law, Volume I: Rules 2005, p. 15-16 (“The definition contained in Additional Protocol I does not distinguish between the regular armed forces and other armed groups or units, but defines all armed forces, groups and units which are under a command responsible to a party for the conduct of its subordinates as armed forces of that party. Both definitions express the same idea, namely that all persons who fight in the name of a party to a conflict – who “belong to” a party in the words of Article 4 of the Third Geneva Convention – are combatants.”).

[10] ICTY Appeals Chamber 15 July 1999, Tadic, Judgement, § 145.

[11] ICRC, Commentary on Geneva Convention III Relative to the Treatment of Prisoners of War 1960, art. 4.

[12] Meron, Some Legal Aspects of Arab Terrorists’ Claims to Privileged Combatancy, in: 40 Nordisk Tidsskrift Int’l Ret 1970, p. 55.

[13] ICRC, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law’, 2009, p. 23.

[14] Zamir, Classification of Conflicts in International Humanitarian Law, 2017, p. 140-141.

[15] https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule4.

[16] P. 3-2, § 10-12.

[17] ICRC 1987, p. 512, ‘this clause expresses in full the generally accepted interpretation of the word "responsible" in Article 1 of the Hague Regulations: responsible to the authority or State on whose behalf the fighting is conducted.’

[18] ICRC 1987, p. 509, at 1672 (“A "responsible" command cannot be conceived of without the persons who make up the command structure being familiar with the law applicable in armed conflict.”).

[19] https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule4.

[20] https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule3 en https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule4. 

[21] ICRC 1987, p. 513-514 (par. 1675), 551.

[22] https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule4.

[23] E.g. art. 44 lid 3 AP I; art. 4(A) lid 2 sub c GC III.

[24] ICTY, Trial Chamber 15 March 2006, Hadzihasanovic (IT-01-47-T), § 260. 

[25] Ferdinandusse, The Prosecution of Grave Breaches in National Courts, in: 7 J. Int'l Crim. Just. 723 2009, 729-734; 46 C.M.R. 1131, 1138, U.S. v. Calley 1973 (‘[A]ppellant was convicted by general court-martial of three specifications of premeditated murder and one of assault with intent to commit murder in violation of Articles 118 and 134, Uniform Code of Military Justice, 10 USC xx 918 and 934, respectively. Although all charges could have been laid as war crimes, they were prosecuted under the UCMJ’); Bayerisches Oberstes Landesgericht 23 May 1997, 3 St 20/96, p. 88, 108, 116.

[26] Supreme Court of the Netherlands, 4 April 2017, ECLI:NL:HR:2017:574, NJ 2018/106, § 3.3; ECLI:NL:PHR:2016:967, at 128.

[27] Appeals Court of The Hague 22 December 2017, ECLI:NL:GHDHA:2017:3769, at 18. Attorney General with the Supreme Court of the Netherlands, 11 October 2016, ECLI:NL:PHR:2016:975, § 157.

[28] Watkin, Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy 2005, p. 25-26 (“if a group or individual fails to demonstrate an appropriate link to a Party to a conflict then they are excluded from being combatants”).

[29] Attorney General with the Supreme Court of the Netherlands, 11 October 2016, ECLI:NL:PHR:2016:967, § 73; followed in Supreme Court of the Netherlands, 4 April 2017, ECLI:NL:HR:2017:574; Municipal Court of The Hague, 10 December 2015, ECLI:NL:RBDHA:2015:14365, at 7.28; Court of Appeals of The Hague, 25 May 2018 ECLI:NL:GHDHA:2018:1248 & ECLI:NL:GHDHA:2018:1249; Court of Appeal of England and Wales 22 February 2012, R v. Mohammed Gul, EWCA Crim 280; United States Court of Appeals for the Fourth Circuit 18 April 2018, US v Hamidullin, No. 15-4788, § 12-13.

[30] https://www.politie.nl/themas/flight-mh17/witness-appeal-crash-mh17.html.

[31] The Russian Federation argues in its observations of 8 November 2019 in the European Court of Human Rights case against Ukraine concerning Eastern Ukraine: “Many of Ukraine’s complaints concern fighting in an armed conflict which Ukraine is at pains to allege is an international armed conflict. That is false, because the Anti-Terrorist Operation that Ukraine has seen fit to launch against its own people in East Ukraine is a domestic affair.”; The Russian Federation argues in its observations of 31 December 2015 in the European Court of Human Rights case against Ukraine concerning Eastern Ukraine (Application no. 20958/14), § 383: “Indeed, Mr Girkin, who is a Russian national, has been active in fighting in Eastern Ukraine. However, it is entirely clear from all of his reported utterances that he is not an agent of the Russian Federation, and he rails against Russia for failing to provide military support to Eastern Ukraine.”

[32] ICJ, 4 June 2008, Case concerning certain questions of mutual assistance in criminal matters (Djibouti tegen Frankrijk), at 196.

[33] Henckaerts e.a. 2005, Customary International Humanitarian Law; https://ihl-databases.icrc.org/customary-ihl/eng/docs/home.