Past conflicts: Non-international armed conflicts in Ukraine
EndedUkrainian armed forces were involved in non-international armed conflicts with the self-proclaimed ‘People’s Republics’ of Donetsk and Luhansk in the eastern Ukraine. In recent times, Russia has exercised overall control over the separatist groups, hence turning the NIAC into an IAC.
In the aftermath of the occupation of Crimea by Russia, protests in the Luhansk and Donetsk provinces in Donbass, a region in eastern Ukraine, turned into non-international armed conflicts in spring 2014. Over the past months, the Russian overall control over the rebels groups has transformed the NIACs into an international armed conflict.
In the aftermath of the occupation of Crimea by Russia, protests in the Luhansk and Donetsk provinces in Donbass, a region in eastern Ukraine, turned into non-international armed conflicts in spring 2014, until Spring 2022.
Two criteria need to be assessed in order to answer the question whether a situation of armed violence amounts to a non-international armed conflict.
- First, the level of armed violence must reach a certain degree of intensity that goes beyond internal disturbances and tensions.
- Second, in every non-international armed conflict, at least one side to the conflict must be a non-state armed group which must exhibit a certain level of organization in order to qualify as a party to the non-international armed conflict. Government forces are presumed to satisfy the criteria of organization. For further information, see 'non-international armed conflict' in our classification section.
2014 – 2022: Non-international armed conflicts
Various indicative factors are used to assess whether a given situation has met the required intensity threshold, such as the number, duration, and intensity of individual confrontations; the types of weapons and military equipment used; the number of persons and types of forces participating in the fighting; the number of casualties; the extent of material destruction; the number of civilians fleeing; and the involvement of the United Nations Security Council. For further information, see 'non-international armed conflict - intensity of violence' in our classification section.
Intensity of violence
From 6 April 2014 onwards, armed men started seizing government buildings in a number of towns and cities in Eastern Ukraine. After the lapse of an ultimatum requesting them to disarm, on 14 April 2014 the then acting President Turchynov announced the deployment of the army as part of an 'anti-terrorist operation' in order to regain control of the seized areas. ‘Ukraine Says Donetsk “Anti-Terror Operation” Under Way’, BBC, 16 April 2014; ‘Ukraine Crisis: President Vows to Fight Pro-Russia Forces’, BBC, 14 April 2014. The operation triggered intense fighting. For instance, on 2 May 2014 rebel forces shot down two Ukrainian army helicopters during an "anti-terror" operation, which resulted in the death of two members of the Ukrainian army. Moreover, ‘four suspected separatists’ were captured and ‘10 rebel checkpoints seized.’ M. Tran, T. McCarthy and A. Yuhas, ‘Ukraine: Government Troops Move Against Pro-Russia Separatists’, The Guardian, 24 April 2014; ‘Ukraine Crisis: Sloviansk Rebels Down Army Helicopters’, BBC News, 2 May 2014; ‘“Many Dead” in Ukraine Offensive in Sloviansk – Turchynov’, BBC News, 2 May 2014.
On 30 April 2014, acting President Turchynov announced that the government was no longer in control of Donetsk and Luhansk. L. Harding, ‘Ukraine’s Government Has Lost Control of East, Says Acting President’, The Guardian, 30 April 2014. In May 2014, following a referendum, pro-Russian separatists declared their independence as ‘People’s Republics’ in Donetsk and Luhansk. S. Walter, O. Grytsenko and H. Amos, ‘Ukraine: Pro-Russia Separatists Set for Victory in Eastern Region Referendum’, The Guardian, 12 May 2014. Around the presidential elections on May 25, fierce fighting broke out between pro-Russian armed groups and Ukrainian armed forces over the control of the airport in Donetsk. S. Walker, ‘Ukraine Says it Controls Donetsk Airport After Fighting Leaves Dozens Dead’, The Guardian, 27 May 2017. At the latest as this point, the armed violence reached the required degree of intensity. However, the threshold was probably already reached earlier, by mid-April, on account of the frequency of reported clashes, the heavy weaponry used by the armed groups, and the deployment of the Ukrainian Army.
Hostilities have continued since then, despite the February 2015 Minsk II Agreement provided for a ceasefire and the withdrawal of heavy weapons from the frontline. Violence regularly flared up, while the violations of the ceasefire agreement have been frequent. It should be noticed, however, that the intensity of battles decreased significantly after the Minsk Agreements. ‘Thousands of Civilians Risk Losing Access to Basic Necessities as Fighting Escalates in Eastern Ukraine, Security Council Told’, Press Release, UN doc SC/12704, 2 February 2017. According to the Ukrainian news media Hromadske International, compared to the two previous years, 2016 was a less violent year. Notably, the armed clashes declined and less casualties have been registered, while Ukraine lost no territories to the rebels. ‘The Best of the Worst: What 2016 Was Like for Donbas’, Hromadske International, 9 January 2017. The key events of the year include the escalation of the conflict in Svitlodarsk arc in June and December, as well as the intense shelling in the Mariupol sector in December. ‘Latest from OSCE Special Monitoring Mission (SMM) to Ukraine, based on information received as of 19:30, 30 June 2016’, OSCE, 1 July 2016; ‘Ukrainian army repel armour attack near Svitlodarsk, casualties reported’, Ukraine Today, 23 December 2016; ‘Ministry of Defense: Most intense shelling in the Mariupol sector took place in Novohryhorivka’, Ukraine Crisis Media Center, 1 December 2016.
In February 2017, the United Nations reported a significant escalation of hostilities. The Organization for Security and Co-operation in Europe (OSCE) reported that the city of Avdiivka, in Donetsk Oblast, was heavily attacked by pro-Russian forces from 29 January 2017 until 4 February 2017, leaving the city without electricity and heating. More than 30 soldiers and 7 civilians were killed, while dozens of buildings were damaged. OSCE recorded more than 10,000 explosions in a single day, which is the highest number since the beginning of the conflict in 2014. ‘В Авдіївці теплопостачання перевели на стабільний режим’, Українська правда, 5 February 2017; ‘OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of 19:30, 31 January 2017’, OSCE, 1 February 2017. According to another report by OSCE, the whole year of 2017 witnessed 401,336 ceasefire violations by both separatists and Ukrainian armed forces. ‘OSCE SMM: Over 400,000 ceasefire violations recorded in eastern Ukraine this year’, Ukraine Crisis Media Center, 22 December 2017.
In Spring 2018, the degree of violence again increased significantly. The week of the 14 May was probably the worst of the year, according to Alexander Hug, a deputy chief of the monitoring mission of the Organization for Security Cooperation in Europe. Notably, two Ukrainian soldiers were killed and four were wounded in fighting near the village of Yuzhnoye. Russian-backed Donetsk separatists accused Ukraine of using heavy artillery and tanks against residential areas. On the other hand, separatists said four civilians were killed and four were wounded in the shelling. ‘Several killed amid surge in violence in Ukraine’, DW, 21 May 2018. In 2018, it has been reported that 7700 cease-fire violations took place, that 113 Ukrainian soldiers died fighting, and that 776 soldiers were wounded. These numbers represent a slight fall when compared to 2017. ‘Потери ВСУ на Донбассе: за 2018 год в боях погибло более 110 украинских бойцов’, BBC News, 18 December 2018.
2019 was less tense than previous years. This is evidenced by the significant decrease of civilian deaths and the progressive military disengagement in several locations, notably at Stanytsia Luhanska. The OSCE Mission in Ukraine reported 19 civilian deaths and 128 injuries in the course of 2019, which are the lowest numbers since the beginning of the conflict in 2014. ‘Events in the “People’s Republics” of eastern Ukraine Annual Report 2019’, Civicmonitoring, 19 February 2020; ‘Status Report as of 13 January 2020’, OSCE, 17 January 2020. Nevertheless, the conflict was not over. Indeed, a non-international armed conflict ‘continues until a peaceful settlement is achieved’ regardless of the oscillating intensity of violence, thus even when the intensity requirement is not met for a certain amount of time. See International Criminal Tribunal for the Former Yugoslavia, Prosecutor v Haradinaj et al., Judgment, IT-04-84, 3 April 2008.
In 2020, fighting between the separatist forces and the Ukrainian army has remained sustained and intense. The independent Ukrainian press service Unian reported that the month of March 2020 has been one of the deadliest for a long time: 51 killed and 113 wounded on the separatist side, and 12 killed and 83 wounded on the Ukrainian side. ‘Ukraine Army reports enemy death toll in Donbas over March’, Unian, 2 April 2020; ‘War’, Unian, March 2020. Furthermore, allegedly opposition groups have profited from the media concentration on the COVID-19 pandemic to increase the pressure on the Ukrainian army. ‘Vu d’Ukraine.Dans le Donbass, la guerre tue plus que le coronavirus’, Courrier International, 19 March 2020. Despite the conclusion on 22 July of the most effective ceasefire agreement until then, deadly violence had continued to take place throughout 2020 on the eastern frontline around Svitlodarsk, Avdiivka-Yasynuvata, the city of Donetsk, and Shyrokyne in the east of Mariupol. However, unlike before, the number of ceasefire violations fell by 82%, resulting in a significant decrease in the number of victims in the months following the agreement. Olha Polishchuk and Franklin Holcomb, ‘Breaking the pattern: the relative success of the latest ceasefire agreement in Ukraine’, ACLED Data, 24 November 2020; International Crisis Group, Crisis Watch, January - December 2020; ‘OSCE says ceasefire agreement reached for eastern Ukraine’, Reuters, 22 December 2021.
From the end of 2020, beginning of 2021, the violence started to flare up again. The OHCHR reported that the levels of violence increased again and reached the levels prior to the July 2020 ceasefire agreement. In terms of violations of the agreement, the OHCHR refers to 8,484 violations in the last 6 months of 2020 compared to 39,806 in the first 6 months of 2021. This resulted in 62 civilians casualties between 1 February and 31 July 2021: 15 killed and 47 injured. ‘Report on the human rights situation in Ukraine (1 February - 31 July 2021)’, OHCHR, 23 September 2021, p 7-8. This trend continued in the following six months. According to the OSCE Special Monitoring Mission in Ukraine, the number of confrontations in violation of the ceasefire agreements doubled compared to the previous six-month period. Special Monitoring Mission to Ukraine, ‘Trends and observations July – September 2021’, OSCE, 17 November 2021; ‘Report on the human rights situation in Ukraine (1 August 2021 – 31 January 2022)’, OHCHR, 28 March.
On 24 February 2022, Russia launched a military offensive against Ukraine. This has increased the cooperation between pro-Russian forces in the Donbass and the Russian army. However, there is not enough information to conclude that Russia is exercising overall control over the ‘People’s Republics’ of Donetsk and Luhansk. Accordingly, the conflict remains non-international in nature.
Organization
A series of indicative factors are used to assess whether armed groups exhibit the required degree of organization, such as the existence of a command structure and disciplinary rules and mechanisms, the ability to procure, transport, and distribute arms, the ability to plan, coordinate and carry out military operations, the ability to negotiate and conclude agreements, e.g. cease fire or peace agreements. If the criterion of a minimum organization of the armed groups is not fulfilled, there is no armed conflict. For further information, see 'non-international armed conflict - organization' in our classification section.
Two main armed non-state groups participate in the non-international armed conflicts in Ukraine: the ‘People’s Republic of Luhansk’ and its forces and the ‘People’s Republic of Donetsk’ and it forces. Little is known about their internal organization. However, several factors confirm that they are sufficiently organized. First, they have been able to control large parts of eastern Ukraine since April 2014. Second, numerous reports indicate that they have access to and use artillery. See ‘Ukraine Crisis in Maps. A Visual Guide to the Continuing Conflict’, The New York Times, Last Updated 1 September 2015. Finally, the leaders of the ‘People’s Republic of Luhansk’ and the ‘People’s Republic of Donetsk’ have repeatedly signed peace agreements with the Ukrainian government, including the February 2015 Minsk II Agreement. L. Dearden, ‘Ukraine Crisis: Government and Pro-Russian Rebels Sign Ceasefire Agreement’, The Independent, 5 September 2014; M. Weaver, A. Luh, ‘ Ukraine Ceasefire Agreed at Belarus Talks’, The Guardian, 12 February 2015.
The organization of the Donetsk and Luhansk People’s Republics noticeably evolved in six years of the conflict. Soon the republics became perfectly organised with an effective curfew and key governing positions being occupied by Russian citizens. ‘Перемены в Донбассе. О "русской весне" приказано забыть’, Radio Svoboda, 4 January 2019. The most significant changes started taking place after the auto-proclaimed leader of Donetsk People’s Republic, Alexander Zakharchenko, died in an explosion in the restaurant “Separ” on 31 August 2018. Opposition forces blamed his death on Ukrainian saboteurs. The death of Zakharchenko entered into the long list of killings of the commanders of Donetsk and Luhansk self-proclaimed republics. Previous deaths include the military commander Alexander Bednov “Batman”, Aleksey Mozgovoy, Pavel Dremov, Arsen Pavlov “Motorola”, Mikhail Tolstykh “Givi” and Valery Bolotov. ‘Майдан — Крым — Донбасс: главные события пяти лет войны’, Hromadske, 20 February 2019. After the death of Zaharchenko, the governing system was modified: executive powers held by Zaharchenko were transferred to the chairman of the cabinet. An amendment in the Constitution forbade the future leader of the republic to be the prime minister at the same time, which was the case with Zaharenko, who was both the leader of the republic and the head of the cabinet between November 2014 and August 2018. ‘Events in the “people’s republics” of eastern Ukraine Annual Report 2018’, Civicmonitoring, 25 February 2019.
As for the internal military organization, the death of Zaharchenko had considerable effects on the DNR military as well. Indeed, Zaharchenko commanded special forces regiment (Spetsnaz), the republican guard and tactical rocket forces. All these formations were integrated into the Russian-led First Army Corps. ‘Events in the “people’s republics” of eastern Ukraine Annual Report 2018’, Civicmonitoring, 25 February 2019. Thus, the DNR military started to closely resemble the LNR military formation commanded by the Second Army Corps. Both the First and the Second Army Corps are considered to be subordinated to Russia's Eighth Combined Arms Army, a newly created formation in Russia’s Southern Military District set up on purpose for the war in Donbass, as reported by the Ukrainian Lieutenant General Sergei Naev. ‘Наев: Армейские корпуса "ДНР" и "ЛНР" - это классические подразделения ВС РФ’, Ukrinform, 2 May 2018.
Russian involvement and end of the NIACs
The Russian backing of the armed groups in the Donbass region raises the question whether the initial non-international armed conflict has been transformed into an international armed conflict. Indeed, should Russia exercise a sufficient degree of control over the opposition groups, the actions of the rebels could be attributed to Russia and thus the non-international armed conflict (NIAC) would turn into an international armed conflict (IAC). As clarified by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in its seminal Tadic decision: ‘in order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity.’ ICTY, The Prosecutor v Duško Tadić, Appeals Chamber, Judgment, IT-94-1-A, 25 July 1999, § 137. For further information on the question of control, see the Classification section. Evidence suggests that Russia is training and equipping the armed groups and providing them with weapons. M.R. Gordon, ‘Russia Continues to Train and Equip Ukraine Rebels, NATO Official Says’, The New York Times, 4 November 2014. For example, Pantsir-S1 Anti-Aircraft Artillery – which is a gun-missile system combining a wheeled vehicle mounting a fire-control radar and electro-optical sensor – was seen and documented in video footage by several people in Donbass. This gun-missile system entered service in Russia in 2012 and, according to information at our disposal, has never been supplied to the Ukrainian government. Another example is the latest version of the principle tank used by Russia, T-72B3, that was equally used by separatists in the Eastern Ukraine. Furthermore, BPM-97 is a military vehicle used only by Russia that was put into service on the separatist side and documented in 2015. ‘Russia’s Pantsir-S1s Geolocated in Ukraine’, Bellingcat, 28 May 2015; ‘Уничтоженные танки России Т-72Б3 с танкистами в Украине. Часть 1’, ‘Украïнский Мiлiтарний Портал, 30 June 2019; ‘БПМ-97 – испытание Украиной’, Информационное Сопротивление - ЮГ, 17 July 2015. Nevertheless, training and equipping non-state actors does not amount to overall control per se: as aforementioned, ‘coordinating or helping in the general planning of its military activity’ are also required to make IHL of international armed conflicts applicable. ICTY, Prosecutor v Duško Tadić, Appeals Chamber, Judgment, IT-94-1-A, 25 July 1999, §131.
Since the beginning of 2022, Russia has increasingly played a crucial role in coordinating and planning military actions of the separatist armed forces. There are a number of elements that suggest that Russia exercises overall control over the separatists. First, Russian officers and personnel have been transferred to the political and military composition of the DPR and LPR forces. It has been proven that officials from the Federal Security Service (FSB) and from the Main Intelligence Directorate (GRU) were transferred into DPR and LDP law enforcement agencies with key roles, while Russian Federation Air Force (RFAF) officers and servicemen were also sent to the Ukrainian 8th Army Corps as well as into the structures of the 1st and 2nd Army Corps; Russia was also involved in the recruitment and deployment of Russian mercenaries and volunteers to join the DPR and LPR forces. Global Rights Compliance, ‘International Law and Defining Russia’s Involvement in Crimea and Donbas’, 13 February 2022; Pavle Kilibarda, ‘Was Russia’s Recognition of the Separatist Republics in Ukraine ‘Manifestly’ Unlawful?’, EJIL: Talk!, 2 March 2022. This has allowed Russia to influence the decision-making process of the separatist armed groups. Since then, Russia has thus played a crucial role in the planning and coordination of the activities of the DPR and LPR forces, which also corresponded to Russian military objectives. Natia Kalandarishvili-Mueller, 'Russia's "Occupation by Proxy" of Eastern Ukraine - Implications Under the Geneva Conventions’, Just Security, 22 February 2022.
In addition, it has also been proven that DPR and LPR armed forces received direct orders and instructions during different operations coming from Russian forces. Andrey Goryanov, Olga Ivshina, ‘DPR special forces fighter: Russia's aid was decisive’, BBC, 31 March 2015; Bellingcat, ‘Russian Officers and Militants Identified as Perpetrators of the January 2015 Mariupol Artillery Strike’, 2018, p.12; ‘Social networks claim that a Russian general is commanding militants in Debaltseve’, Ukrainska Pravda, 18 February 2015. It seems important to remind that it is not required that each and every operation shall be directed by the controlling State for the overall control to be established. ICTY, The Prosecutor v Duško Tadić, Appeals Chamber, Judgment, IT-94-1-A, 25 July 1999, §137. Russia has exercised its control over the separatists at the political, inasmuch as it has appointed curators and has approved members of the DPR and LPR governments, leading Russia to be able to control the structures and politics of the DPR and LPR. Vladimir Peshkov, ‘The Donbas: Back in the USSR’, European Council on Foreign Relations, 1 September 2016; Anton Zverev, ‘Ex-rebel leaders detail role played by Putin aide in east Ukraine’, Reuters, 11 May 2017; ‘MH17 Witness Appeal November 2019’, Politie. Furthermore, the DPR and LPR economically depend on Russia. This therefore not only permits the delivery of artillery fire from Russia but also the payment of the salaries for example. Julian Röpcke, ‘How Russia finances the Ukrainian rebel territories’, Bild, 16 January 2016; ‘Refusal to pay pensions to residents of Donbass explained by their pro-Russian sentiments’, Lenta, 5 February 2020; Donald N. Jensen, Moscoww in the Donbass: Command, Control, Crime and the Minsk Peace Process, NATO Defense College, 2017.
In light of the foregoing, it is possible to conclude that Russia exercises overall control over the DPR and LPR separatist armed groups. Accordingly, the NIAC between such groups and Ukraine is now an IAC between Russia and Ukraine.
Ukraine is a party to the four 1949 Geneva Conventions. All parties to the conflict are bound by Article 3 common to the 1949 Geneva Conventions that provides for the minimum standard to be respected and requires humane treatment without adverse distinction of all persons not or no longer taking active parts in hostilities. It prohibits murder, mutilation, torture, cruel, inhuman and degrading treatment, hostage taking and unfair trials.
Ukraine is also a party to the 1977 Additional Protocol II applicable to non-international armed conflicts. The ability of the ‘People’s Republic of Luhansk’ and the ‘People’s Republic of Donetsk’ to control territory since April 2014 suggests that they fulfil the required criterion for the applicability of Protocol II: the ability to carry out sustained and concerted military operations; impose discipline; and the ability to implement Protocol II.
All parties are bound by customary international humanitarian law applicable to non-international armed conflicts. Customary international law consists of unwritten rules that come from a general practice accepted as law. Based on an extensive study, the International Committee of the Red Cross maintains a database on customary international humanitarian law.
In addition to international humanitarian law, international human rights law continues to apply during times of armed conflict. Under human rights law, the territorial state has an obligation to prevent and to investigate alleged violations, including by non-state actors. Specifically in relation to Ukraine, see
Non-state armed groups are increasingly considered to be bound by international human rights law if they exercise de facto control over some areas. Even if the state has lost effective control over part of its territory, its positive obligations to secure human rights through diplomatic, political and economic measures continue to apply. ECtHR, Ilascu and Others v Moldova and Russia, Judgment, App no 48787/99, 8 July 2004, § 331.
