Ukrainian armed forces are involved in non-international armed conflicts with the self-proclaimed ‘People’s Republics’ of Donetsk and Luhansk in eastern Ukraine.
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. The support of Russia to the ‘People’s Republic of Luhansk’ and the ‘People’s Republic of Donetsk’ does not amount to overall control. Hence, the Russian support does not transform the conflict into an international armed conflict. However, there is a parallel international armed conflict between Russia and Ukraine.
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.
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.
Intensity of the violence
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.
From 6 April 2014 onwards, armed men started seizing government buildings in towns and cities in Eastern Ukraine. After the lapse of an ultimatum requesting them to disarm, the then acting President Turchynov announced the deployment of the army as part of a 'anti-terroristm operation' on 14 April 2014 to regain control. ‘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. During four meetings of the Security Council from April 13 to May 2, United Nations officials reported that the armed militias were expanding and that there were frequent violent clashes. Security Council, 7154th Meeting, UN doc S/PV.7154, 13 April 2014; 7157th Meeting, UN doc S/PV.7154, 16 April 2014; 7165th Meeting, UN doc S/PV.7167, 29 April 2014; 7157th Meeting, UN doc S/PV.7167, 2 May 2015. See also 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, 2 May 2014; ‘“Many Dead” in Ukraine Offensive in Sloviansk – Turchynov’, BBC, 2 May 2014.
Acting President Turchynov announced on 30 April that the government was no longer in control of Donetsk and Luhsank. L. Harding, ‘Ukraine’s Government Has Lost Control of East, Says Acting President’, The Guardian, 30 April 2014. In May 2014, pro-Russian separatists in Donetsk and Luhansk declared their independence as a self-proclaimed ‘People’s Republic’. 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 required degree of intensity 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 providing for a ceasefire and the withdrawal of heavy weapons from the frontline. Violations of the ceasefire agreement are frequent. In February 2017, the United Nations reported a significant escalation in the hostilities. ‘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.
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, 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 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. Under international humanitarian law this is the case when a state exercises overall control over an armed group. Overall control exists ‘when a State has a role in organising, coordinating or planning the military actions’ in addition to financing, equipping and training. 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. In a September 2014 report, Amnesty International argued that ‘satellite images, coupled with reports of Russian troops captured inside Ukraine and eyewitness accounts of Russian troops and military vehicles rolling across the border, leave no doubt that this is now an international armed conflict’. Amnesty International, Ukraine: Mounting Evidence of War Crimes and Russian Involvement, 14 September 2014. After the capture of two Russian military intelligence officials, the Russian President Putin admitted the presence of Russian military in east Ukraine. S. Walker, 'Putin Admist Russian Military Presence in Ukraine for First Time', The Guardian, 17 December 2015.
However, the presence of Russian soldiers does not per se indicate a relationship of overall control. The claims concerning the Russian relationship with the armed groups in eastern Ukraine are murky and conflicting. Evidence suggests that Russia is training and equipping the armed groups and providing them with weapons. However, in itself this does not amount to overall control. M.R. Gordon, ‘Russia Continues to Train and Equip Ukraine Rebels, NATO Official Says’, The New York Times, 4 November 2014.
The lack of overall control does not exclude that there is parallel international armed conflict between Russia and Ukraine because Russian forces are present in Ukraine and resort to force.
Views of parties to the conflicts and other actors
Without expressly qualifying the conflict, Ukraine claims that it is involved in an 'anti-terrorist operation' in response to the 'armed aggression of the Russian Federation against Ukraine involving both regular Armed Forces of the Russian Federation and illegal armed groups guided, controlled and financed by the Russian Federation.' Depositary Notification, International Covenant on Civil and Political Rights, Ukraine: Notification under Article 4(3), Reference C.N.416.2015.Treaties-IV.4, 5 June 2015, and Note Verbale, Permanent Representation of Ukraine to the Council of Europe, Declaration Concerning Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedom, JJ7979C, Tr./005-185, 10 June 2015.
Different actors have taking different views of the conflict, reflecting the difficulty of having access to reliable information. Amnesty International has stated in September 2014 that the Russian involvement has transformed the conflict into an international armed conflict. Amnesty International, Ukraine: Mounting Evidence of War Crimes and Russian Involvement, 14 September 2014. In contrast, on 23 July 2014, the International Committee of the Red Cross characterized the conflict as ‘non-international’. ICRC, ‘Ukraine: ICRC Calls on All Sides to Respect International Humanitarian Law’, Press Release, 23 July 2014. Similarly, Human Rights Watch qualified the conflict as non-international while highlighting that ‘if Russian armed forces became engaged in the hostilities in eastern Ukraine that would create an international armed conflict between Ukraine and Russia.’ Human Rights Watch, Eastern Ukraine: Questions and Answers About the Laws of War, 11 September 2014.
The September 2014 report of the United Nations High Commissioner for Human Rights does not formally qualify the situation, but refers to the applicability of international humanitarian law. Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Ukraine, UN doc A/HRC/27/25,19 September 2014, § 11. Later reports date the beginning of the armed conflict back to mid-April 2014, but simply refer to the 'armed conflict' without qualifying the situation. United Nations High Commissioner for Human Rights, Accountability for Killings in Ukraine From January 2014 to May 2016, 25 May 2016, §31. In May 2016, the United Nations Special Rapporteur on extrajudicial, summar or arbitary executions, described the situation as an 'armed conflict with strong international dimensions.' Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on his Mission to Ukraine, UN doc A/HRC/32/39/Add.1, 4 May 2016, §89. In paragraph 22, the Special Rapporteur specifies that 'whether the allegations of the involvement of the Russian Federation in support of the armed groups in eastern Ukraine would in fact internationalize the conflict in certain districts... is a discussion that remains outside the scope of the present report'. Various United Nations' treaty bodies describe the situation as a 'conflict' or 'armed conflict'. See for example Committee against Torture, Concluding Observations on the Sixth Periodic Report of Ukraine, UN doc CAT/C/UKR/CO/6, 12 December 2014, §17; Committee on the Elimination of Discrimination Against Women, Concluding Observations on the Eighth Periodic Report of Ukraine, UN doc CEDAW/C/UKR/ CO/8, 3 March 2017, §9; Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Ukraine, UN doc CRPD/C/UKR/CO/1, 2 October 2015, §13.
The Office of the Prosecutor of the International Criminal Court concluded in its November 2016 Report that the required degrees of intensity and organization of the armed groups were reached by 30 April 2014. In addition, the Office 'is also examining the allegations that the Russian Federation has exercised overall control over armed groups in eastern Ukraine', which would transform the conflict into a single international armed conflict. Office of the Prosecutor, Report on Preliminary Examination Activities, November 2016, §168 and §170.
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.