 Good afternoon, everyone. It's my great pleasure to invite you to the next session of the War Crimes Research Group series to get there today from 1 to 2.15. We are very happy because we have a second kind of round table regarding contemporary topics that arose out of the war on Ukraine. Of course, those topics will be examined in the broader context. But as you saw from the title of these web seminaries, all questions. And then I put a question mark, new answers. So we have three experts who will talk about the use of force as a response, the possibility of use of force as a response to serious violations of human rights and humanitarian law. Another expert who will talk about war refugees and a third expert who will talk about another phenomenon of using bellow, which is related to foreign fighters. So I don't want to take more time. I want to introduce you briefly our experts here. Our first expert is Dr. Mark Svatek, I'm sorry about that. As a legal scholar, but also a practitioner, a practicing lawyer, a refugee, criminal immigration law from Germany. Mark recently published with CUP his very interesting book The History of Humanitarian Intervention. So Mark, I'm really looking forward to your comments, your thoughts, your reflections about the recent developments we have during the three weeks. Our second speaker will be Dr. Ruby Ziegler. Ruby is an associate professor in international refugee law, Reading University School of Law, senior research associate with the University of Oxford, with the University of London on refugee law, editor of many working papers series. And with the monograph as well on voting rights of refugees. Ruby, thank you very much for being with us. I know you have to leave a little bit earlier. And our third speaker is Dr. Emanuele Somarion from the Santana School of Pisa. Scuola, Emanuele please forgive me for not properly an associate professor as well of international law, an expert in human rights, humanitarian law, disaster law. You're also director of a master program you have in human rights and conflict management since 2018 and a member of the ILA subcommittee on human rights in times of emergency. So what we are going to do during the next hour and 15 minutes is like that we are going to try to bring together issues from use of balloon, using balloon but also refugee law with a reflective tone. Having said that, I stop here, I will give the floor first to Mark. I would like to invite our participants to use a Q and A. I'm going to collect questions and Mark you have to flow. Thank you very much. Thank you very much. Thank you, Maria for organizing. And let's see you how this works. Can you hear me? Yes, we can hear you, yes. Okay, good. Thank you, Maria for organizing this and I'll be honest and say that I was much more looking forward to this when we were talking about organizing something like this a couple of months ago after this war has started, I really don't feel like there is that much to say about the legality of the use of force during this war because it doesn't seem to have an impact on whatever we say. But at the same time, we now are in a very unprecedented situation in that there is this ongoing so-called special military operation by Russia that has not only been condemned by United Nations General Assembly resolution with a clear and overwhelming majority which declared this operation an aggression against Ukraine in violation of Article 24 of the Charter. No, we also have something that we've not really had before that is the International Court of Justice intervening which has ordered on March 16, 2022 that at the request of Ukraine that the Russian Federation shall immediately suspend the military operations that it commenced on February 24, 2022 in the territory of Ukraine. And it is ordered that the Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it as well as any organizations and persons which may be subject to its control or direction take no steps in furtherance of this illegal, clearly illegal military operation. But of course, the aggression continues. There are clear indications of war crimes being committed. Millions of people have been forced to flee from their homes. Thousands have died. We are here to try and make some legal sense of this because that's our job. Maria has promised some new answers in the title of today's panel, but as a historian of humanitarian intervention, I can't really come up with anything new, but at least maybe with some of the things that something you haven't heard before. It's clear that the Russian claim of an ongoing genocide of Russians in Ukraine as a course of their special military operation is an obscene use not only of the term and concept of genocide, but of language and facts in general. And at the same time as it is a legal term and international law provides us with a language to talk about events happening in the world around us. It is a language that provides normativity, but also a language that provides some beauty when not everyone understands or uses words the same way. The language delies that Putin uses to justify his aggression or the Russian aggression follow the pattern of humanitarian intervention with a repeated claim of the necessity to stop an alleged ongoing genocide of Russians in Ukraine. One might find some hope in that desperate, for hope at least I am, that this somehow shows some respect for international law for a shared understanding of international law. But of course the opposite is true, as can be clearly seen from the fact that the Russians chose to ignore the one place where they could have argued their legal case, that is the hearing for the ICJ. They did later submit something, but at the actual hearing, their chairs were empty. And still the Russian choice of language is hardly accidental. You will know probably that the Russian view on what is happening in Ukraine is not only completely different in terms of what they see as the facts, but also the normative consequences of these facts. So the fact that Russia is using a language that corresponds to images of international law may tell us something. That language apparently also works at least within Russia, we don't know how widespread, but there is support for the Russian actions. And I've had more than one conversation with Ukrainians who talk about their disbelief over the reactions of relatives in Russia who suggest that they or Ukrainians are lying to them when they tell them they are under attack. And we must also note that while the support for the United Nations General Assembly resolution against the Russian aggression was overwhelming, the countries that did not support it make up about half of our planet's population. I would therefore want to reflect some more on the language of international law, which is a language of its, that is a product of its time and place. And whatever you take on the current events, there, the place in international law, the place of words of meanings is determined at least in a very broad sense by the future development of our shared worlds. I want to focus on the nuances of the claims that Putin is putting forward to justify his actions, which as the official propaganda insists do not translate as war, as they are clearly intended to add legitimacy, not legality to what is happening. In a sense, Putin claims that in Ukraine, there are Russians, which here is first and foremost an ethnic category, though given the chance Russia also issues passports to them, that there are Russians in Ukraine that the Russian state is authorized to protect. Russia has been engaging in what can be called passportization in Ukraine since at least April 2019. And residents of separatist control parts of Ukraine can become Russian citizens via simplified procedures since then. This fast track was made possible prior presidential decree issued by Putin, which accelerated the naturalization process from at least eight years to under three months, allegedly for humanitarian reasons. We can refer to this as a claim of right of the ethnic state to ethnic intervention on the territory of the state of residence, irregularly interfering in the rights of ethnic groups settled on his territory by force or through discriminatory laws. This does sound somewhat clumsy, I'll admit, but it's a translation of an old German claim of a right to intervention. And I'll come back to that in a moment. Russian and Soviet textbooks before them tend to stress the principle of non-interference and the principle of sovereign equality as two sides of the same coin. So they wouldn't go as far as expressing any rights of what I will call now ethnic intervention or co-national intervention, even though that is precisely what Putin is claiming. And the theory of co-national intervention that was developed in the early 20th century by German international lawyers is rooted in development of rights to protect national minorities and goes back to the second half of the 19th century. And that is also the time where some theorists also saw the roots of the idea of humanitarian intervention. And I want to just as an example go, therefore back to 1937 and the dissertation by Hermann Mussler, who was then a young German lawyer but who went on to become a distinguished international lawyer and a highly respected judge and the International Court of Justice. In 1937, Mussler published his doctoral dissertation, The Intervention im Völkerrecht, which contained as a statement on policy rather than law, a commitment to the right of the ethnic state to act to protect the minority rights of ethnic co-nationals with the citizenship of third countries. Back then he took the then still unique position contrary to all major writers on international law of allowing for a right to intervene on behalf of ethnic, folkish minorities for the purpose of reorganizing Eastern Europe. Obviously Putin probably has not read Hermann Mussler, he would have read Karl Schmidt, who is referenced by Mussler, but I think it's quite remarkable if one reads this dissertation of 1937 now and there are clear parallels to the arguments that Russia is putting forward. Mussler repositioned the question of the admissibility of intervention along ethnic lines, finding ethnicity trumping justice. The ethnic ideology is considered as establishing the principle of non-intervention into the affairs of other states as the cornerstone of an international law explicitly based on a modern type of natural law, whereas interventions in the name of justice are considered inadmissible. Mussler saw, he's quoting Hitler then, Nazi Germany working toward establishing legal rights for minorities under international law. And in Mussler's construct, national socialist ideas of a reorganization of international law along ethnic lines work to strengthen minority rights, though only those based on bloodlines. For the case of alien racial minorities, which is my translation of his term, Rassefremde Volksgruppe, living scattered among the dominant ethnic groups, no case could be made for any corresponding legal right as a minority and thus no grounds for intervention. Mussler saw also the formation of circles of international law, Völkerrechtskreis, that is, we saw areas developing in which a particular form of international law applied. His existing examples in 1937 were the British Empire and the political order of America. He obviously also thought of Eastern Europe as a place where Germany should be legally allowed under international law to intervene to establish the natural order. And it's difficult not to think that Putin would have appreciated such ideas. I mentioned this example and it's possible to go into this even further because the Nazi international lawyers did really think about minority rights as grounds for legal intervention a lot and there's a whole strain of German international law thinking related to minority rights that is contrary to human rights ideas but uses that we have today but uses a very similar language and does indeed envision a world order based along ethnic lines that corresponds eerily to Russia's idea of their ethnic spheres of influence and I will stop at Moesler because Moesler is really went on to become a very, very distinguished international lawyer and his dissertation later was also praised when on the 50th anniversary of his doctoral thesis they even had a celebration at the university which happened to be the University of Bonn where I also studied which I think is if you look at really the details of the line of thinking he put forward back then is not understandable because it is so clear that in the 1950s that was a textbook in a way for an aggression like the one that Russia has unleashed on Ukraine but it didn't hurt his career so hopefully the people who put forward justifications for the Russian actions will not have such distinguished international couriers as Haman Moesler and with that I would like to stop, yeah. Thank you very much, Mark, it was a wonderful introduction and very different introduction bringing historical elements based on very little justifications for the use of force. I hadn't realized that we, I hadn't thought that we'd go back to Lebanon's realm logic, you know, exactly while listening to Putin and the others, very, very true but knowing the history, the legal history behind these arguments and I think your book clearly offers this perspective is very important to understand also broader implications and your last comment about careers, legal careers, you know it's also, yeah, we can talk about that another time but thank you very much. It's the first introduction to the topic and having said that I want to give the floor to Ruby. Thank you very much, Mark. Brilliant, thanks very much Maria for inviting me and to everyone who's attending. So let me try and share my screen. Hopefully that will work. I don't have many slides but I'm going to have primarily a holding slide of sorts. So this is me and these are the issues that I will be this sort of uncovering or covering in the short talk. So let's get started. So the conflict that was prompted by Russia's recent invasion of Ukraine has already caused the largest external displacement on the European continent in well over 60 years. The numbers are dwarfing arrivals in Europe during the so-called 2015 Syrian refugee crisis. And so in this presentation, what I shall address is the external displacement from Ukraine and I will do so drawing on IHL and international refugee law separately. So for those interested, Maria's kindly put in the chat chapters that I've written about the relationship between those two regimes and how they affect interpretive questions. Those arise in particular context such as regional regime. So the EU qualification directive, article 15C is a case in point and I'm very happy to discuss these as you were at a later point. But for today, what I wanted to do is speak about those five themes on your screen. So the activation of the temporary protection directive for the first time by the EU, the link between displacement and the 1951 refugee convention, the notion of explicit protection from reforma in IHL and the notion that there is an implicit non-reforma obligation that is much broader conceptually in IHL in common article one of the four Geneva Convention. And then finally talk hopefully on the day when hostilities do seize and the way in which the question of non-reforma may also affect the issues around prisons of war. So on the first theme, the activation of the temporary protection directive. So as you will know, most of the countries bordering Ukraine on its west side, IEU member states, Poland, Hungary, Slovakia, Romania. And for over 20 years, the temporary protection directive, which was developed in the aftermath of the mass displacement from the Balkans, has never been activated. We had previous crisis, as I said, the so-called refugee crisis in 2015, but there was never the political will to activate it. On this occasion, very quickly, within a week after the invasion started, the EU council, which acted on a proposal from the commission, unanimously on this occasion, unanimously agreed to activate it. And that decision was made in response to what is referred to in the language of the directive as a mass influx of displaced persons. And so the way that is defined is the arrival in the EU of a large number of displaced persons who come from a specific country or geographical area, whether their arrival in the EU was spontaneous or aided. And what the directive does, it sets out minimum standards for giving temporary protection. And quite importantly, it adopts measures that promote what they call a balance of efforts between the member states in receiving such persons and in bearing the consequences thereof. So that's called the EU jargon for responsibility sharing, precisely the issues that, tragically, we know haven't really been manifested in previous crisis. Now, the interesting thing about the way the temporary protection directive has been activated here is that it doesn't just apply to Ukrainian nationals who were displaced from Ukraine. It also applies to third country nationals or indeed to status persons who are in Ukraine and are unable to return to their country of origin in safe and durable conditions. So that would include someone who was an asylum seeker or refugee in Ukraine on the 24th of February or later on. And we all remember the scenes from last autumn of Polish soldiers at the Polish Belarus border were violently pushing back asylum seekers from Afghanistan. We're trying to cross into the European Union territory. On this occasion, the temporary protection directive means that anyone in that position from Ukraine would be able to cross into the EU member state and enjoy the contours, the application of the directive. And the directives also extended its application to those who are family members of either Ukrainians or third country nationals or status persons in those positions. Now, how does that regime sit alongside general refugee protection? So temporary protection is granted without prejudice to the recognition of refugee status under the 51 refugee convention. And member states are allowed not to let individuals hold both temporary protection status and asylum seeker status simultaneously. So the practical matter will be most likely that anyone who holds temporary protection status will not be applying as long as they still hold that status for asylum. What happens once that status seizes, which at most will be three years from its activation, but maybe shorter, I'll come to in a second, right? So the interesting question is, there is a possibility for member states to exclude people from protection. On the same grounds that they would be able to exclude them from refugee protection. So the exclusion clauses in the refugee convention and the refugee convention, the most relevant of which in the current context is that the relates to article 1F1 of the convention, so the commission of war crimes, one can envisage situations where member states might want to exclude people from protection on those grounds. Now, what happens was, say, once the temporary protection directive seizes to apply, one can foresee a scenario, for instance, where the negotiations lead to Russia, either the the EUR or the FACTO continuing to control certain parts of Ukrainian territory after cessation of hostilities. One can see how, say, LGBT plus people who were reasonably able to live in those areas and the Ukrainian control would not be able to return to those places after the cessation of hostilities. So that would be a scenario of the creation of so-called Ukrainian refugee law, a refugee surplus situation. Now, let's take a step back and think about the fact that the EU has activated temporary protection directive here for the first time. Now, on the one hand, we should praise it for acting decisively, rapidly, and indeed with unanimity and the comparison with the clumsy and inefficient way that this country, the UK has been dealing with Ukrainian refugees does put the latter to shame, right? But at the same time, I think, and especially in international form, we need to be critical of the inability to agree similar measures in previous crises and indeed the propensity the EU has to generally actively prevent refugees from arriving on European shores through its various externalization policies with Libya, with Turkey and the like. And of course, it was also easier for the EU to take this step in relation to Ukrainians precisely because Ukrainians even before the 21st of February did not require a visa to come as tourists to the European Union. And so in that sense, their need for so-called safe and legal routes to the EU really relate to at the moment being able to get to the EU border. But there was no point in which the EU was in a position to deny Ukrainians entry because it is a visa free country. And that is by definition very different for any other country in the top 10 refugee producing countries globally. So Syrians, Iraqis, Afghans, Eritreans all require a visa, which is ultimately denied to them. And the other thing I think to highlight about the differential treatment of Ukrainians in this context is that the EU council decision explicitly states that Ukrainian nationals as visa free travelers use the member state in which they want to enjoy the rights attached to temporary protection and indeed to join family and friends across what the EU called the significant diaspora networks that currently exist across the Union. And they say in the statement this would in fact facilitate the balance of efforts between member states and reduce the pressure on national reception system. Now this is entirely sound, right? This is precisely the rationale for what many of us see as the flaw in the Dublin system which ultimately assumes that people must seek asylum in their first country of asylum even though of arrival in the EU even though it's not a legal requirement for them to do so. But for any other country they will move to that country is able to return them back to their first country of entry and that of course creates a disproportionate burden as we saw in 2015 with Syrian arrival. So one can really only hope that seeing the light in the context of Ukrainians may transpire to future crisis which sadly we know are likely to have. So this deals with temporary protection directly. Let me move to how displacement interacts with the 51 refugee convention definition. So of course contrary to popular myth refugee law doesn't require refugees to seek asylum in their first country of entry and nor is refugee status affected by transiting through various countries. So refugee status is a declaratory status and so countries that are beyond Ukraine's border and that includes those that require Ukrainians to obtain a pre-arrival visa must consider asylum applications from persons displaced from Ukraine irrespective of whether they have transited through one or more countries on their way here and that almost by definition will be the case for anyone coming to the UK for instance. Now article 182 of the refugee convention defines a refugee as someone who's outside their country of nationality or habitual residence due to a well-funded fear of persecution for one or more of the five conventional reasons race, religion, nationality, membership of a particular social group or political opinion and who is unable or unwilling on those grounds to avail themselves of the protection of their state. Now this provision does not refer to an armed conflict that either a necessary or a sufficient eligibility criteria and yet in the past and in fact in the present because the handbook is still valid since its latest update in 2011 the UNHCR handbook says and I quote persons compelled to leave their country of origin as a result of international or national armed conflict are not normally considered refugees under the 1951 convention or 67 protocol that's the famous or infamous paragraph 164 and that so-called war flaw has prompted much debate and it's led UNHCR to clarify in their own language this statement in a guidance of the issue in 2016 well what they claim is in paragraph 33 and I quote rarely are modern day situations of armed conflict and violence characterized by violence that is not in one way or another aimed at particular population or which does not have a disproportionate effect on a particular population creating this causal link to convention ground that seems to have been almost a 180 degree flip in the UNHCR position and in fact they even deal in the guidance with the question of mass influx and they say the fact that there are many or all members of particular communities are at risk that does not undermine the validity of any particular individual's claim so the so-called differential impact as they used to be applied to those fleeing armed conflict needing supposedly to show their risk is over and above those that are normal in conflict that is rejected and so it is indeed the case that in most contemporary armed conflict like the one in Syria very many of those who have fled the conflict will have had a well funded fear of persecution for several of the convention ground so think for instance about those who were Yazidis Yazidi women Yazidi children and men under Islamic State rule there were virtually all under threats that fits very neatly as you were within the 51 convention in the circumstances in Ukraine there is a difficulty which is that the IHL presumption the nationals will not ordinarily sever their ties to their country of nationality if you are Ukrainian you still enjoy the protection of Ukraine that sits uncomfortably with the requirement in article 182 that people have to be unable unwilling to avail themselves of their state's protection either because their state is the agent or because it's unable one willing to protect them from persecution that emanates from non-state actors this is of course very different for those who are fleeing areas in Ukraine that are presently controlled by Russian forces because those areas obviously neither Ukraine can provide protection in nor can knowing what we know now can anyone expect Russia to effectively protect people from persecution so anyone fleeing those areas would obviously meet the definition so this really deals with refugee what I want to do in the remainder 5 minutes or so is talk about where IHL comes into the picture so IHL really speaks to reformer both explicitly and implicitly and it speaks explicitly in rather limited form so while IHL obviously envisages destruction death and ultimately displacement the expectation is that if you adhere to respect IHL rules not least those that differentiate between civilians or distinguish between civilians and combatants you can minimize displacement of civilians while we see the horrid pictures and imagines from Ukraine of utter disregard to any principles of IHL no doubt is contributing to the mass displacements that we see so the clearest articulation in IHL of the principle of non-refuma is in article 454 of the 4th Geneva convention the notion that protected person quote-unquote in no circumstances be transferred to a country where they may have reason to fear persecution for political opinion or religious belief the problem is that this provision only applies to civilians who find themselves in the hand of a party to the conflict of which they are not nationals so it would only apply to Ukrainians in the hands of Russia or Belarus potentially and Russians in the hands of Ukrainians but it doesn't apply beyond that remit and so it is a very limited scope in this context which is why and this takes me to the fourth point I very much believe in the application of what I see as an implicit non-refuma obligation in IHL and so the first point to notice and in this international conflict between Russia and Ukraine the applicability of the common article one to the 4th Geneva convention is not in doubt and what I've argued previously is that if you read that provision purposefully the undertaking to quote-unquote respect and ensure respect for the conventions in all circumstances must mean that people who are not taking an active party in hostilities flee to any country that is a signatory to the convention any high contracting party from territories where there are violations of the Geneva convention that are either occurring or likely to occur then the obligation to ensure respect for the convention requires state parties or state parties not to refile such persons back as long as the risk of exposure to those violations persists and indeed the ICRC agrees with that point I also believe that that position is consistent with the various obligations that exist under article 146 of the 4th Geneva convention to repress great breaches and the obligations to take measures that are necessary for suppressions of all acts that are contrary to the provisions of the convention but to me the grim pictures that emerges from Ukraine leaves really little doubt that at the time of speaking about this rather returning persons to Ukraine could expose them to serious violations and that given the dynamic nature of the conflict in Ukraine that applies virtually anywhere in Ukraine at the moment and that suggests to me that any country in the world frankly that this convention and these conventions are universally ratified as an obligation not to return people to Ukraine pursuant to IHL irrespective of whether the refugee law framework would or would not apply to every single person in those positions that of course is both a legal action it infringes no country's sovereignty and it is in my view it is a morally requirement so the final point I want to make is about non-reformer accusation of hostilities and the return of prisons of war so IHL operates under rebuttable presumption that nationals enjoy the protection of their country and the consequence of that is that the assumption is that a prison of war will want to return to their country after the hostility sees and so IHL is rather equivocal about this article 118 of the Surgeon Eva convention that release and repatriation of POWs has to take place without delay but the 2020 ICRC commentary to the convention I believe rightly notes that whilst refusal to return cannot be based on quote-unquote mere convenience an obligation to repatriate must be understood as being subject to an exception and this face a real risk of violation of fundamental rights by their own country and that is an interpretation which the ICRC says accords with the principle of non-reformer so to conclude the reality of mass external displacement prompted by conflict isn't new and the way non-belligerent countries in particular should respond the extent to which their actions are legally required rather than purely morally desirable rather than accepting purpose of interpretation of existing obligations and indeed on political willingness to avail ourselves of bespoke protection devices like the temporary protection directed now it's encouraging to see responsibility sharing and solidarity in reception of displaced Ukrainians and I dare hope that the same principles would apply without discrimination to those seeking protection wherever they come from and some of those are externally displaced will still have protection needs and others who are currently receiving protection under the temporary protection directed in the EU will have lost family members left behind and may be unable to return because of obliterated residential areas they once inhabited so my hope is that the spirit of generosity in which they'd be welcome across the channel will not wane even when formal protection obligations cease so with that I leave you with that I think very still prescient sign at least in relation to the UK and I thank you for your attention, thank you Thank you Thank you very much Ruby so many issues you know both you and Mark touched upon but the question of double standards you know that we all experience the connection of Europe to this crisis you know is very pertinent and also you know linking that to IHL and our common article one of the four Geneva Conventions about the duty to respect and ensure respect so thank you very much for your interesting input, comments and your final reflective thought so having said that you know I want immediately to give the floor to Emanuele and Emanuele talk about another person and the issue today before we started I was reading about 1000 Wagner groups you know their reports that they are about to operate I don't know in Ukraine but we know the phenomenon of fighting fighters is not a new phenomenon but it definitely takes another perspective on the war in Ukraine so you have the floor, thank you Can you hold here me properly? Yes so thank you very much for your kind words and for inviting me I also want to express a sense of awkwardness for discussing these issues while there are horrible things going on in Ukraine but as Marc was suggesting it's our job so here we are so I'd like to start my brief speech from a few headlines which I came across over the last few days describing the environment of foreign citizens in the ongoing conflict in Ukraine these individuals have been referred to with different names including volunteers, foreign fighters, foreign combatants but also mercenaries and this is a term that we have come to associate with a very negative phenomenon so the question I would like to provide an answer with in the coming 15 minutes is what is the legal status of these foreign individuals who have joined the fight in Ukraine and why does it matter and what are the consequences of attributing the other status to these individuals so first of all which part of international law applies to the matter and which treatise in particular as Ruby was saying we know that this situation of armed conflict which is regulated by international humanitarian law so the branch of international law that imposes duties and rights on religion and parties we also know that this conflict is an international armed conflict to which the full Geneva conventions apply and also additional to the conventions of 1977 and both Russia and Ukraine are parties to these treaties so what do these treaties say about the various types of status that individuals involved or affected by an armed conflict can have well the main distinction as we probably know is the one between combatants on one hand and civilians on the other who are combatants combatants are those individuals who are entitled to take part in hostility so mainly the regular soldiers of national armies and they also have the right to be granted prisoner of war status if captured and being granted POW status is a very nice thing because you enjoy a number of rights and privileges including the right not to be tried for taking part in hostilities and the right to be sent home once the conflict is over the flip side of course is that they are basically always legitimate military target unless they are on the combat then we have civilians in the civilians should not participate in the fighting they should also enjoy protection from the effect of hostilities if they do directly participate in hostilities of course they lose the immunity from attack and they can be targeted and in case of capture they can be tried for the very fact that they can up arms unlike combatants and then there is a third category which is usually mentioned in connection with citizens of third countries who join the conflict which is the category of mercenaries and these sort of fighters have obviously a very bad reputation because mercenaries are usually linked to the idea of fighting for an economic gain and they were involved in the past in attempts to overthrow government or to overthrow government and this is why states have tried to outlaw these activities the recruitment the hiring of mercenaries through specific treaties and also HL addresses the phenomena most specifically article 47 of additional protocol one who defines who a mercenary is for the purpose of the protocol and states that they shouldn't take part in hostilities and if they do take part in hostilities then they are captured and they should not enjoy POW status so the question is under which of these categories do foreign fighters fighting Ukraine fall and in order to understand this we need to start from the definition of combatants which is included in the Geneva Convention in additional protocol one and the most relevant provision for our purposes is the one of common article sorry article 4a of the first Geneva Convention paragraphs 1 and 2 who describe who is entitled to combatants status and hence to POW status if captured paragraph 1 starts by saying that a combatant is whoever is a member of the armed forces of a party to the conflict so the regular uniform units of a state of war combatants but then it also includes members of militias and volunteer corps that are part of such armed forces so you might have a unit of individuals who is not initially part of an armed force but then is incorporated into the armed forces and even those individuals would then enjoy combatant status note that what is the size if to established if you are a member of the armed forces if in case you're fighting a militia if you militia belongs to the armed forces of a party to the conflict is national law so it's the national legal framework which is determinative in making this sort of decision then we have another category of individuals which instead refers to individuals who are members of militias who are not formally party a part of an army but the fact of the fight alongside one of the parties to the conflict and these individuals these members of these militias they are to be considered combatants and hence are entitled to POW status if they fulfill a certain number of criteria that of carrying out openly having a fixed and distinctive sign recognizable of distance acting under a let's say a responsible command and let's say respecting the gist of international humanitarian law to respect any of these criteria then they lose their right to be considered prisoners of war now note that in none of these provision none of this provision ever mentions the need to possess a certain nationality in order to join a regular army in fact if you think of it there are plenty of units even within western armies that are composed entirely or partially of citizens the foreign legion in the French army the Gurka battalion in the British army so obviously nobody would question the fact that these soldiers are in fact legitimate combatants and should be entitled to POW status if they get captured so does this leave us with respect to the foreign fighters who have let's say flocked into Ukraine over the last few weeks we mentioned in the talking about thousands of individuals well the last majority of these individuals has gone through a recruitment process which ended up in a formal enrollment Ukrainian law allows for the recruitment of foreign or stateless individuals within their army at least since 2016 and this is why in my opinion there is no significant difference between the members of what is called the international legion of territorial name which has been given to this foreign legion and the French foreign legion for instance so all of these individuals are legitimate combatants even if they were to join Ukraine as a group Ukrainian authority could decide to incorporate the group into the regular army and so they would still be considered as legitimate combatants and according to the ICTY which had to address a similar case with respect to the conflict in Bosnia-Zegovina in the early 90s this incorporation could also occur during the conflict so it's not something which needs to be done ex ante a third alternative for them would be let's say not to join formally join the Ukrainian army but they would still be entitled to combatant status if they were to fulfill the additional criteria was mentioned of article 4a2 so wearing a fixed and distinctive sign carrying arms openly and so on and so forth the question would be what happens if it's that they join the conflict because they want to get paid more because of their interest for early more money in this case they could be included in the third category we have mentioned at the beginning they could be considered mercenaries yet the definition of the term mercenary provided by additional protocol one is rather narrow a mercenary is someone who is specifically recruited to take part in the conflict who actually does participate in the conflict who is essentially motivated by a desire to make money and is promised a compensation which is let's say significantly higher than that of an ordinary soldier he or she does not need to be cannot be a citizen of one of the states who are fighting in the conflict so we see that there are many additional criteria which all need to be respected at the same time and the definition is so narrow that a famous commentator once said that a mercenary who cannot exclude himself from this definition deserves to be shot and his lawyer with him so it's really difficult to be labeled as a mercenary quite clearly I would say that foreign fighters siding with Ukraine are not there for the desire to have some material gain but more for idealistic purposes we are fighting against an authoritarian regime or to defend democracy etc so it's difficult the exclusion clause of article 47 would already kick in to make sure that they are not considered mercenaries of course and here I come to Maria was saying the same criteria should also be applied with respect to the foreign fighters joining the conflict alongside Russia including those working for so called private military companies such as the Wagner group or other companies who are in this line of business let's say if they are formally incorporated into the national army then this is the end of it they are combatants and they should be granted POW status if captured or they might fall within the category of militias fighting alongside one of the parties to the conflict so if they fulfill the additional criteria of paragraph 482 again wearing fixed as distinctive sign and so on then they would be equally entitled to combatant status if captured and this was recently confirmed also by the commentary of the ICRC to the third Geneva convention of 2020 but what if they are not formally linked to the Russian state let's say they are hired by a private company to protect its property on Ukrainian territory even then it would still be difficult to consider them as mercenaries in the sense of article 47 of additional article 1 because one should look again many as many elements first of all whether their activity really constitutes direct participation in hostilities you might have the use of violence in the territories of a state which is affected by a conflict which does not amount to direct participation in hostilities you should look at which nationality they have because members of the Wagner group might have a Russian nationality so in this case remember you cannot be deemed considered a mercenary if you are the national of one of the belligerent states and since Russia is one of the belligerent states this would exclude them from being considered mercenaries you should see whether you have been specifically recruited to fight in the conflict and again members of private military companies very often are let's say permanent employees of the company they work for so you would have to prove that a specific individual has been recruited in particular precisely to join the conflict in Ukraine one last thing and then I conclude is that we should remember that whatever the status every individual falling into the hands of one of the parties to the company should at least enjoy the minimum guarantees the minimum protection which are listed in article 75 of additional which is titled fundamental guarantees and thus in fact contain some minimum standards of treatment that should preserve the well-being and the dignity of anyone who is in the power of any belligerent party so here I conclude thank you very much for your time and if there's any question I'd be happy to take it thank you thank you very much Emanuele once more yeah it's the last month you know we constantly read and follow events and I think that every single topic of international law is related to what we experience I don't know if that makes international law more relevant or not but this is a very very big discussion maybe you would like all to reflect I know that Ruby will have to leave earlier if I'm correct right Ruby so I was wondering you know whether you would like to add something based on a final note a final comment you know before you leave us and then I will open the floor for the other questions is there something you would like to add or comment about thanks very much Maria so there were really interesting questions in the Q&A which I've answered more elaborately so I don't want to repeat what I've written there but I think what does come through from them is really the question of what lessons can we draw from this from the way Europe in particular I think obviously this happened on European soil the Europeans responded and whether this would be a good model in future so I think I just want to highlight the point I made in relation to the last question I think to Patrick on whether temporary protection directive is a good new refugee route for non-Ukrainian refugees and I think here what we need to distinguish and of course the temporary protection itself by its name suggests that it is intended to be a quick fix for something that is helping rapidly as a mass influx and so it's limited in time and it doesn't include an individualized assessment that is the nature of the regime and that's why it also doesn't exclude it's always standing a future assessment of refugee protection so to the extent we will have a similar I hope not but if we had a similar crisis like this somewhere else and that would render the temporary protection directive relevant and I should hope it will at least people will now have a precedent to make sure that the refugees are not drawn which they didn't before I think the more long term as you were substantive change at the EU and of course the UK and many others have to make is to stop using the rhetoric of we want to stop the smugglers and we want to we don't want people to risk their lives coming here and at the same time what I think has been uncovered also in relation to the UK and Ukraine is well suddenly it seems that it is possible to assess online applications submitted from outside the country and issue somebody a visa on that basis and allow them to come into the country so if that possibility exists for Ukrainians and surely it could also exist for Syrians for Afghanis for Somalis etc and there is really no without as I said I'll leave other people to make their judgments around motivations and these are very charged terms that I'd rather not use myself but it is remarkable just how different the approach has been to Ukrainians by governments by populations as well but I think actually more by governments and it is something we need to reflect on and I hope everybody who is on the call will also and take that forward so I apologize at this stage I will have to leave but it's been a pleasure and also to hear Mark and Emanuele and I wish you best of luck with the rest of the symposium Thank you very much Ruby thanks a lot for your intervention and your comments and I hope we'll meet soon in person Thank you very much and now based if you allow me I'm going to use Ruby's comments and also ask a question both to Mark and Emanuele and then I will go back to the Q&A so Ruby said he highlighted two things first of all he says what lessons can we learn out of that out of the last month and the second thing he highlighted was this hyperactivity that we see on behalf of international institutions international lawyers something that we haven't seen in the past but we have seen the ICJ being involved the European Court of Human Rights different bodies the General Assembly uniting for peace resolution and I was wondering Mark I will come back to you based on your historical work but also trying to to understand those things as you mentioned the famous German old doctrine how it's translated nowadays I was wondering how do you assess all these hyperactivity of international legal actors on that front do they try do we if you want try to reiterate a status quo something we always talk about the end of the world order as we knew it or as we thought we knew it the ICJ thing about the unilatera saying that it's doubtful whether unilatera records to force whether it was accepted how do you assess that based on your work and the last question and the second question that maybe it's also for Emanuele both of you and I will go to the other questions is also we always talk about the humanization of law right and it's a question very much related by Theodor Miron and others you know and slowly we see also a humanization of us at Bellum like based on the human rights committee general comment that an aggressive war you know produces a factor and arbitrage the loss of life to what extent do you think that do we see a kind of change into that or not so I stop here Mark Emanuele to comment on that and then I will go back sure thank you Maria but I I mean I don't really how do I assess this hyperactivity I think on the one hand it's remarkable that the ICJ took this step and not took the easy way out of saying well we don't really have jurisdiction even though it is a quite novel construct that led to the ICJ accepting it's jurisdiction there but at the same time they're doing this but nothing follows from it and I think this will have to lead to continued discussions we've been having for at least since the end of the Cold War how the international order can actually continue to function as an order when we have states that are I mean I like to believe it is really just an elite of corrupt people who are pursuing an ethnic national agenda at any cost possible and that's something that you can't really confront with legal values with legal norms but I think that calls into question what international law can really do because we can talk about it the United Nations can talk about it but once the Security Council talks about it the veto Russia's veto is the end of it and yeah I mean this is especially in Germany this is leading to radical change in talking and thinking about military objectives which is really nothing that anybody could want but that is just the place we're at and to address not so much what you were saying but some of the other comments were relating to and also what Ruby wrote in the chat about the question whether the activation of this temporary protection directive creates whether it creates new routes for refugees that's not how this directive works at all because it really is only for people who have a status in Ukraine which leads in the daily work of us migration lawyers especially here in Berlin where a lot of people from Ukraine are coming in already leads to new problems because you have people who have studied for example in Ukraine and they don't immediately fall under the rules of this EU directive and Germany is trying to create something but this is also discriminatory we can obviously again ask the same question there whether this shows some kind of institutionalized racism but at the same time I only have questions really at this stage that is the unfortunate truth yeah and I think that's a very sincere answer I think more and more all of us we have questions you know thank you for that Emanuel yeah well I wonder whether there is really an increased activism of international fora or maybe we're simply more aware of them because I mean Ukraine had already made resort to the ICJ last year they brought interstate cases to the European Court of Human Rights I mean international institutions have been involved abundantly over the past and nobody really paid much attention to what they were doing so even back in 2014 after the Crimea invasion there were general Assimba resolution condemning the referendum for instance which was held in Crimea so I think that what Ruby and Mark were saying is actually true so I'm sorry to have to admit it but there are double standards on how the whole international community including international lawyers are reacting to this phenomenon possibly because it's closer to us because we identify more with the victims of this conflict I found it interesting what Mark was saying about the loop holes which are still in the temporary protection because for instance he was mentioning the fact that individuals who do not have a permanent resident permit in the Ukraine would be excluded from the protection but also in the Ukrainians who happen to be outside Ukraine before the 24th of February were excluded technically so if somebody was on a work trip or you know went quickly outside for a quick holiday outside then he or she would technically be outside so states are given leeway Mark do you want to intervene sorry I wanted to just quickly illustrate how this translates I represent people who left Ukraine ages ago and who applied for asylum here under not necessarily very convincing reasons but who also have very very severe medical issues so we're in a I mean representing them in several court cases where we're talking about whether or not they should get a status as being protected from deportation into Ukraine and these proceedings have now been brought to a standstill even though they've been going on for two or three years because the courts are saying well let's see what happens in Ukraine which is just completely idiotic because we were arguing for medical reasons that to protect their lives they have to stay in Germany because the medical system in Ukraine couldn't even accommodate their special needs before the war and now obviously the chance that the Ukrainian system could do it is zero it was nonexistent before but now given this wonderful treatment that the medical system in Ukraine gets from the Russian forces I have absolutely no understanding why any judge under these circumstances said well we'll just put a halt to the proceedings they've been going for three years they can go on longer but that is the reality also. May I continue? Yes, in fact this is a very clear and evident example of how national legal system sometimes are not really up to standards to what they should do but going back to the other question that Maria was asking whether the humanisation of Yusin Bell and Yusat Bellum whether we're heading in the right direction well of course with Yusin Bell I'm all in favour of humanisation in the sense that Rui was speaking about the fact for instance that there is an obligation to repatriate prisoners of war once the conflict is over and a few years back there has been new interpretation which was put forward by the ICTY saying that it's not necessary an obligation that the state has because if the POW doesn't want to go back because it fears prosecution or for any other reason why should you send him back to a country where he doesn't want to go to return when it comes to humanising Yusat Bellum on the other hand I also see some merits there and I know that the Human Rights Committee made a convincing point in its latest general comment on the right to life my the doubt which is put forward by many scholars or experts is always that you risk blurring the lines a bit between Yusin Bellum and Yusat Bellum you see the ICRC for instance is positive that I don't care about the origins of the conflict once the conflict is there we should always apply IHL in a partial way in the same way for all if you start injecting elements of Yusat Bellum into the picture then who is to say that some states or the other would not use them as a pretext to for short of its obligations under IHL so it's a very thin line on which we need to walk here and I don't know we should look at how state practice develops in the coming years I guess thank you very much for that there is something about self-defense actually one of the questions of the Q&A it's quite interesting that Russia at the end of the day said oh you know in their submission before the ICJ that for us you know it's just self-defense it has nothing to do you know with genocide but we have seen you know how the legal argumentation and pretext of self-defense has been used and abused constantly I was thinking about the negotiations taking place in Istanbul we will see President Erdogan as peacemaker you know and I couldn't say I thought oh my god I never thought I would see that as well and being a peacemaker particularly Erdogan himself but now having said that I would like to ask a final question to you if that's okay you know with you you talked about the double standards when it comes to the reaction of the European Union and the UK and Europe to the war in Ukraine we saw also many companies we saw what happened with Metta or Facebook for example I found some things particularly scary personally allowing incitement to violence for particular people but not for other people so we saw a blurry picture here as well and something that we have over identified about the power that those companies you know collect but also you know there is another point that I would like your opinion if you want to address that as well what about this I know we come back and back and back to that and so President Putin said who are the West who is the West to tell me what to do do you want to talk again do you want to talk about other violations of international law and personally as a teacher I always found it very challenging when I'm in class you know to find my own language speaking of language mark and not to preach not to be dogmatic but try to say why I consider this conflict to be different you know from previous violations of international law having said that I always thought and I always thought that the 2003 RAC invasion was RICA pure like that you know so I was wondering how do you address those comments yourself and what are your final thoughts on these questions it's a broader question Manuele you are a teacher as well mark you have been a teacher but I also know that you interact with many people so what are your final thoughts on that thank you Mark or Manuele like I said I don't really have answers at this point I think we do have to understand that when we talk about international law that's not necessarily how other international lawyers always see international law I mean if you compare and I've done this in the book as well if you compare the narratives for example over Kosovo that are part of the canon of western international law there are very very different presented in Russian textbooks I mean I don't speak Russian unfortunately but other people do and they've analyzed this and it is very sobering to just really look at that I mean I personally have lots of problems with Kosovo and legality and legitimacy and everything but the one-sided view that is prevalent in Russian textbooks and Chinese textbooks as well really brings us to the question of international law really obviously it's very international when everybody comes together at the United Nations Assembly but it's also obviously very limited at the Security Council especially considering the veto powers so I think that is a conversation that we will be having a long time and there are some of these questions in the comments that we understand to be at least partly motivated by some understanding of the Russian position I have to say the Russian claim that it is somehow threatened by the expansion of NATO I don't think it's credible but because the way I understand the development of security thinking at least in the west it is not about territorial gains it just isn't and if you can't really counter somebody who does not share that understanding or that those values with arguments anyway it's a conversation that will be ongoing Thank you Mark Manuel Yes well many say that it's a sad hour for international law and not for international lawyers because we've been very very busy over the last few weeks unfortunately I would add well my opinion is that of course some of the motivations which have been put forward by Russia to justify its intervention are clearly outside the realm of what can admitted to be even vaguely legal in the international legal arena of course it's easy for Mr Putin and for Russia to say that the west did it first I mean the intervention in Iraq was not based on any solid legal ground one might argue whether intervention in Syria was based on solid legal ground so again it's a blame game that nobody should be playing I guess my impression is that as I said it's a time where I don't know I want to see these I mean it would be a positive time if we would be able to assert that certain conducts are really and definitely illegal so at least it would sort of set certain milestones so to say that should be preserved let's say for future generation in the sense that when you face a violation of international law if you're able to call it a violation that's already something significant my doubt is that at times this very politically charged discussions sometimes blurred the lines between legal and political opinions and hence this does not really contribute to make any clarity on these points I don't know whether this was a satisfying answer but this is what little I can say about it no there is no satisfying answer it's like you think I don't know Mark do you want to say something I saw some reaction and then just rub up I completely agree with that it is obviously something meaningful when you can say this is a clear violation of international law that that is the whole purpose of the language of international law that it gives us that power to say this is a violation this is illegal we all know that nothing follows from it if there is no will to make anything follow from it but I have to say in the current circumstance that that understanding of international law doesn't really give me much hope it just leads me to think how many times do we need to say never again yeah yes well on God you made me think that two weeks ago we had another round table and I asked the same question you know to the other speakers one of them was young Trumpers who was quite I wouldn't say pessimist but he said international law for me is hopeless in times of crisis that's what he said you know and then always he claims you know we don't talk about the crisis of international law we talk about the crisis of international law it looks like that we have moved from crisis because it's been five years now we deal with crisis and back class and now we have this resurrection of international law somehow you know when people never care about international law now they ask what does international law say why doesn't international law do something what about war crimes when will Putin be prosecuted these are the questions you know I always have on the table and then my answers are never satisfactory you know because I say well ideally hypothetically it's likely it's unlikely for the time being you know this is the type of language we use being lawyers but have you say that you know I wouldn't really thank you for this discussion which went beyond you know a kind of doctrine but I wanted to question you and to share with you and the attendees what we think what we problematize about you know we don't have answers I think more and more and more we have questions and I think that's good to be honest I don't find it necessarily you know oh my god we have questions and maybe something will come out from all these process but for the time being we're all extremely privileged you know to talk about law you understand what I'm talking when a couple thousand kilometers hundred of kilometers away from us we have people you know who start to death and die from dehydration and stuff like that so I always finish with Albert Camus my model you know and when he said maybe you know the only answer he wrote is decency in the plug in his book I really believe that in those times you know being decent each of us you know matters a lot and I think you know we don't have big projects I don't really have big projects and big words but maybe you know like Mark as my immigration lawyer you know you and I as an academic only myself from my position you know maybe we can maybe decency is the answer at the end of the day and take it from there you know so on that note I want to thank you very much for this discussion I hope I technically I did it properly you know and this is recorded and we will have it and I will send it to you I want to thank the people who participated I know we are towards the end of our semester you know I want to thank all of you and I really hope we will continue these discussions you know because it feels good to share these thoughts with people you know who have the same anxieties if I can use that work you know and be safe be well and continue your good work thank you very much thank you all very much and hopefully see you in person thank you for having me thank you thank you all bye bye thank you very much