After Ukrainian forces announced they had retaken the Kyiv region on April 2, scenes of horror were discovered in the city of Bucha.
Russian forces have been accused of carrying out civillian killings there. Journalists from multiple news agencies have documented mass graves, streets littered with corpses, and dead civilians with their hands bound behind their backs bearing close-range bullet wounds.
World leaders have condemned what Ukrainian authorities are calling war crimes.
Russia is claiming the photos and videos from Bucha were staged.
On April 3, a user on China’s Twitter-like social media platform Weibo asked Yi Shen, a professor at Shanghai’s Fudan University who has 1.7 million Weibo followers, about the images civilians corpses in the Kyiv region. The user said those images would create a wave of “anti-Russian public opinion.”
Yi, replied that Ukrainian civilians may be fair game in Russia’s so-called “special military operation.”
“Didn't Ukraine distribute guns (to civilians)? Since then, all Ukrainians can be regarded as combatants, [like those] captured by the United States in Guantanamo,” Yi wrote.
“First, they are not civilians, but combatants; second, they are not soldiers and do not enjoy the protection of the Geneva Convention rights system. The United States has already demonstrated [it], and Ukraine can't jump out of this box.”
To say all Ukrainians can be viewed as combatants is false. Even Ukrainians who joined the Territorial Defense Force of the Armed Forces of Ukraine, like civilians, are entitled to Geneva Convention protections. To treat all Ukrainians as enemy combatants is illegal.
When Russia launched its full-blown invasion of Ukraine on February 24, Ukrainian President Volodymr Zelenskyy tweeted: "We will give weapons to anyone who wants to defend the country. Be ready to support Ukraine in the squares of our cities.”
Those who wished to take up arms were given a streamlined process to join the Territorial Defense Forces – the reserve component of the Armed Forces of Ukraine.
On March 5, The National Guard of Ukraine (Ukraine’s national gendarmerie) announced that 100,000 Ukrainians had joined the Territorial Defense Forces.
Prior to Russia’s full-scale invasion on February 24, Ukraine’s Territorial Defense Force was made a standalone branch of the country’s armed forces. That made it a military, and not a paramilitary organization.
Mostly consisting of light infantry, “These formations must ensure security and order behind the frontline, assist the Armed Forces in combat operations, guard key infrastructure facilities, and render assistance in combating hostile subversive activities in their local areas,” the Kyiv Independent reported, citing the National Resistance Act, passed in July 2021.
While the uniforms have been irregular, sometimes a mixture of street clothing and camouflage, members of the Territorial Defense Forces identify themselves with yellow or blue arm bands.
Russia and Ukraine are parties to the 1949 Geneva Conventions and the 1977 Additional Protocols, although Russia revoked one Geneva convention protocol to protect victims of armed conflicts (more on that later).
The Third Geneva Convention, concerning the treatment of prisoners of war, states that “members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces” are one of four categories of people who "have fallen into the power of the enemy.”
It also says that members of other militias and volunteers corps, including “organized resistance movements,” enjoy prisoner of war protections if they meet four conditions:
- – That of being commanded by a person responsible for his subordinates
- – That of having a fixed distinctive sign recognizable at a distance
- – That of carrying arms openly
- – That of conducting their operations in accordance with the laws and customs of war
The protections also apply in the case of levee en masse, when “inhabitants of a territory which has not been occupied, who on the approach of the enemy spontaneously take up arms to resist the invading troops without having had time to organize themselves into regular armed forces.”
Participants in a levee en masse should be regarded as combatants — those with a legal right to participate in hostilities between states — “if they carry arms openly and respect the laws and customs of armed conflict,” the International Committee of the Red Cross (ICRC) said.
Still, war is messy. Some argue Zelenskyy’s pledge to arm anyone who wants to fight, statements by other Ukrainian officials and calls for mass resistance could muddy the line between combatant and non-combatant.
Ukrainian Deputy Defense Minister Hanna Maliar, for example, called on civilians to make homemade weapons, join the territorial defense forces, and even throw Molotov cocktails from their balconies.
Amid a full-scale invasion of their country, individual Ukrainians or groups of Ukrainians may engage in hostilities without distinguishing themselves as combatants. Such individuals can be denied prisoner of war status and be tried for acts of war.
However, that does not mean the entire Ukrainian population can be viewed as combatants.
A civilian in an international armed conflict is any person not belonging to the armed forces who does not take part in a levee en masse.
“In case of doubt whether a person is a civilian or not, that person must be considered to be a civilian,” the ICRC notes.
Civilians in areas of armed conflict and occupied territories are shielded by 159 separate articles of the Fourth Geneva Convention, and are to be protected from “murder, torture or brutality, and from discrimination on the basis of race, nationality, religion or political opinion.”
Article 51 of Additional Protocol 1, a 1977 amendment, says that the civilian population “must not be the object of attacks.”
Additional Protocol 1 also prohibits acts or threats of violence intended “to spread terror among the civilian population,” “attacks that may hit military objectives and civilians or civilian objects indiscriminately,” and “attacks in the form of reprisals” aimed at civilian populations.
In October 2019, Russian President Vladimir Putin revoked Additional Protocol 1, citing “risks of abuse” in the “current international environment” related to an international commission set up to investigate war crimes.
Meantime, Yi is not alone in shielding Russia from allegations of war crimes.
Professor Song Zhongping, a military commentator for China’s partially state-owned Phoenix TV, recently repeated the Kremlin talking point that the Bucha killings were potentially “staged,” adding that “Zelensky is an actor doing what actors are trained to do.”
Chinese authorities have censored critical academics. For example, The Associated Press reported that a letter criticizing Russia for its invasion, signed by five professors from leading Chinese universities, was scrubbed from social media.
David Demes, a lecturer at Taiwan’s Tamkang University, recently compiled examples of Chinese media coverage of the Bucha massacre. He showed that the reports either failed to mention Bucha or repeated Russian denials.
At the same time, the Chinese Communist Party is campaigning to indoctrinate students with “a correct understanding” of Russia’s invasion that blames the United States for Moscow’s decision to unilaterally invade its neighbor.
Despite being in lockstep with Russia’s talking points, Beijing said accusing China of spreading disinformation about Ukraine “is in itself disinformation.”