Published: March 11, 2022
By: Darragh Roche
Ukrainian President Volodymyr Zelensky may be making it more difficult to prosecute war crimes against Russian troops amid the ongoing invasion after he reportedly signed a decree legalizing the right of civilians to use weapons in the same way as the country's forces.
The move could complicate efforts to bring war crimes charges against Russian forces as civilians who engage in "direct participation in hostilities" lose their legal protection from "the dangers arising from military operations," according to the International Committee for the Red Cross (ICRC).
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The decree was reported by Kyiv Independent journalist Ilia Ponomarenko on Thursday as the invasion enters its third week. Newsweek has contacted the Ukrainian defense ministry for comment on the matter.
"A new bill officially makes it totally legal for civilians to kill Russian military personnel deployed to Ukraine," Ponomarenko tweeted on Thursday, along with a screenshot of the apparent decree.
A new bill officially makes it totally legal for civilians to kill Russian military personnel deployed to Ukraine pic.twitter.com/6EQ2H92qEY
— Illia Ponomarenko 🇺🇦 (@IAPonomarenko) March 9, 2022
A translation of the decree circulating on social media showed it was dated March 3 and came into effect "following the day of its publication." Article One of the document says that civilians "may participate in repelling and deterring armed aggression by the Russian Federation."
Newsweek is currently trying to determine the veracity of the document.
The ICRC notes on its website that "all persons who are not combatants are civilians" but if civilians participate directly, they lose the protection they enjoy under international humanitarian law.
"Persons with civilian status may not be directly targeted in attacks," the ICRC said. "Civilians who directly participate in hostilities, however, lose that protection for the duration of their participation in hostilities."
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The ICRC also explained that in international humanitarian law "the concept of 'direct participation in hostilities' refers to conduct which, if carried out by a civilian, suspends his protection against the dangers arising from military operations.
"Most notably, for the duration of his direct participation in hostilities, a civilian may be directly attacked as if he were a combatant."
The ICRC noted that "direct participation" is not defined in international humanitarian law but offered its own interpretive guidance of the term.
"Direct participation in hostilities consists of specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict."
The ICRC listed criteria acts must meet to be considered direct participation, including that the act "must be 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."
The United Nations' list of war crimes also includes: "Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities."
The Ukrainian legislation reported on Thursday said that "citizens of Ukraine may participate in repelling and deterring armed aggression by the Russian Federation" using their own weapons.
"Civilians shall not be criminally liable for the use of firearms against persons who carry out armed aggression against Ukraine, if such weapons are used in accordance with the requirements of the Law of Ukraine," the document said.
If the order is genuine and Ukrainian civilians participate directly in hostilities, they would lose their legal protections for the duration of their involvement, likely meaning that Russian forces could not be prosecuted for attacks on civilians engaged in hostilities.
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