Hybrid Conflict and Prisoners of War

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The conflicts in eastern Ukraine and Crimea are not the first time sovereign States have clashed under murky and confused circumstances. The law governing international armed conflict, i.e. the law regulating war between States, has long recognized this fact; the threshold to trigger it is a very low one, and it applies “even if the state of war is not recognized by one of them.” Nevertheless, some perceive Ukraine as a case of “hybrid war” for which the old rules are ill-fitting at best, and no longer capable of regulation or restraint. What happens to international humanitarian law (IHL) when, according to Russian General Valériy Gerasimov, the hybrid nature of recent conflicts produces a “tendency to erase differences between the states of war and peace?” This chapter argues that there are in fact two distinct armed conflicts ongoing in eastern Ukraine. First, there is an ongoing but unacknowledged international armed conflict (IAC) in eastern Ukraine between Ukraine and Russia. Second, there is also fighting sufficiently intense and involving sufficiently organized non-State actors to be considered a non-international armed conflict (NIAC) between the Ukrainian State and rebel forces in Donetsk and Luhansk. Adding another layer of complexity, at certain times and places, it may be that this NIAC might have transformed into an IAC because of Russia’s overall control of these non-State actors.