By: Nikoloz Mosidze
Abstract
This post addresses the complex issue of conducting Non-Combatant Evacuation Operations (NEOs) during urban warfare, focusing on the challenges faced by third-country nationals. The article considers the legal frameworks governing NEOs from the point of international humanitarian law. Also, by analyzing the successful Indian operation "Ganga" in the Russo-Ukrainian international armed conflict, the post draws parallels between the dangers encountered by civilians in classical NEOs, particularly in urban warfare scenarios where safe passages are lacking. It also underlines the military risks and vulnerabilities of third-country nationals in urban combat zones and emphasizes the need for precautionary measures and establishment of the safe zones when conducting this kind of operation.
Introduction
In August 2021, the United States initiated a non-combatant evacuation operation (NEO) known as "Operation Allies Refuge" to rescue its citizens, Afghan nationals, and civilians from third countries from Taliban fighters. Despite successfully evacuating thousands of people, the operation ended with the death of civilians and U.S. combatants. In March 2022, due to Russo-Ukrainian international armed conflict (IAC), the Indian government initiated an evacuation operation named "Ganga" across various countries of European Union to safely return thousands of Indian nationals residing in Ukraine. Overall, the operation was successful as most of the Indian nationals went back home safely. However, no one knows what could have happened if India decided to follow the classical NEO doctrine across Ukraine, where the high-explosive weapons flew indiscriminately throughout the different small and large urban areas of the country. The rules of international humanitarian law (IHL) apply to both scenarios - urban warfare and evacuation, but what if foreign nationals are residing in the conflict zones, do they also enjoy protection while there is nowhere to escape? If they do, which country is obliged to evacuate them, while there is intense combat between the belligerent states for a strategically important city? The rising number of NEOs in the last decades raises questions regarding the norms of IHL, whether they provide sufficient protection to third-country national civilians who, despite not directly participating in active urban combat, find themselves trapped in it.
Urban Warfare, NEOs, and IHL
NEO is not a new phenomenon and has been actively conducted by the states during and after the cold war. It can be defined as a military operation typically performed by an armed force of a country for a specific purpose - to relocate its endangered nationals from a foreign country back to their homeland.[1] According to the U.S. military doctrine, NEOs can be carried out to evacuate the U.S. and other civilians irrespective of their legal status in terms of citizenship or nationality.[2] The ground for conducting NEOs lies in the doctrine of the protection of nationals abroad, whereby, under the UN Charter, it is considered by some as a permissible and legitimate type of operation.[3] The UK manual on NEOs suggests that the legal foundation for such operations can be found in Article 51 of the UN Charter, which implies a state's right to self-defense, serving as a justifiable legal norm for the execution of NEOs, a principle believed to exist in customary international law as well.[4] Nevertheless, under Jus in Bello, there are neither explicit nor implicit rules granting the right or permission for third states to intervene in a conflict with the objective of evacuating their civilians. In such circumstances, if the belligerent states delay the consent of evacuation, the safety of third-country nationals will be deeply jeopardized.
Due to the high level of urbanization in 21st century, the need for non-combatant evacuation operations can arise during urban warfare when belligerent parties are actively engaged in intense combat over a key populated area. Urban warfare is a part of military operations carried out either by a defending party in densely populated areas, aiming to prevent and repel the advance of enemy forces, or by an attacking party seeking to capture the city and clear its districts of opposing forces. This type of military operation poses significant dangers to the civilian population, particularly when they find themselves trapped in cities with nowhere to seek refuge. The dangers of urban warfare are clearly illustrated by the statistics, with confirmation that absolute majority of civilian casualties are direct result of the use of highly explosive weapons in urban settings. In March 2022 in Sumy, northeastern Ukraine, hundreds of Indian nationals found themselves hiding from active urban combat which occurred for several days before their evacuation. The evacuation took place following an agreement between the belligerent parties to temporarily cease active hostilities to ensure the safe movement of civilians. However, such kind of evacuation does not belong to classical NEOs where the third state actively participates in the evacuation of its nationals by using armed forces.
Depending on the intensity of the fighting, third-country nationals who are unable to escape the city may find themselves forcibly held in the urban area, waiting for death every day. However, the question arises as to which party holds the legal obligation to evacuate them, if any, and whether they are protected at all. Article 4 of the Fourth Geneva Convention stipulates that the Convention protects individuals who, in the event of a conflict or occupation are in the hands of a Party to the conflict or Occupying Power of which they are not nationals.[5] However, the same article states that nationals of a neutral State are only protected if their State lacks normal diplomatic representation in the State where they find themselves.[6] This situation becomes even more ambiguous during non-international armed conflicts (NIAC) as there are no explicit guidelines regarding the evacuation of foreign nationals. Nevertheless, to safely evacuate civilians from areas where hostilities are ongoing whether in an IAC or NIAC, the belligerent parties must firstly establish a temporary peace. Otherwise, the humanitarian intent of the third state to rescue its nationals may inadvertently lead to participation in the ongoing armed conflict against one of the opposing parties.
During urban warfare, there is no obligation for the defending party to evacuate civilians from an urban area, regardless of their nationality. Similarly, for an attacking party that occupies the area, there is no obligation, but it possesses the right to evacuate if there is a threat to the security of the civilian population or if there exists an imperative military reason.[7] In cases where an urban area is isolated by an attacking force, the convention encourages parties, though it does not oblige them, to reach an agreement on the evacuation of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.[8] The discriminatory approach contradicts the principle of respecting family unity and raises numerous questions about its practical application.[9] Furthermore, amidst the chaos of war, it is highly unlikely for combatants to engage in assessments to determine which states have a "normal diplomatic representation" with their countries. Therefore, the rules of IHL prove to be highly impractical for third-country nationals seeking to escape urban warfare.
NEOs encounter a further challenge due to the insufficient precautionary measures outlined in Additional Protocol I. According to Article 58, the defending belligerent party is obligated to take necessary precautions to safeguard the civilian population from the dangers of the conflict, which include the removal of civilians and civilian objects, preventing locating of military objectives near densely populated areas, etc.[10] The attacking party also bears obligations, such as: Effective warning, cancellation of prohibited attacks and selecting the objective which causes the least danger to the civilians.[11] Nevertheless, there is a lack of norms that impose obligations on states to establish safe passages for civilians to flee ongoing armed conflicts in urban areas. Creating an untouched passage (especially during the siege) exclusively for civilians and humanitarian purposes, could be considered as the most effective precautionary measure for both belligerent parties. Such obligation could avoid the issue of high civilian casualties, human shields, other humanitarian catastrophes. Such a measure would benefit both third country nationals and the state conducting NEO, redirecting the operation away from areas directly targeted by defending and attacking parties.
Arguably, under the current regulation offered by the Geneva Conventions, the most practical solution for conducting NEOs is through the establishment of neutralized zones under Article 15 of GC IV. This involves forming agreements between states, designating areas where third-country nationals can be transported by one of the belligerent parties, a neutral state, or a humanitarian organization.[12] However, the Article 15 does not explicitly grant the right for states to conduct a NEO as an independent action. Hence, in the absence of a conventional obligation for the states to evacuate third country nationals, the only opportunity for a third country to conduct NEO is the consent of the belligerent states, which depend on their goodwill.
Military Challenges in NEOs
The military challenges arising during the conduct of NEOs in urban areas can vary for all parties involved. Let's consider a scenario where the nationals of State X are temporarily residing in a strategically important city located on the territory of State Y, which is actively engaged in IAC against State Z. While State Y consents to State X about the commencement of NEOs to save endangered civilians from probable death, State Z denies it, citing military strategy, thus stating that the impact of temporary peace can delay or prevent the overall outcome of the offensive military operation in the urban area. Here, three possible actors have conflicting interests that collide with each other: the defending country's interest in repelling or denying the enemy's success in capturing the city, the attacking party's interest in liberating the city from defenders, and the third party's interest in protecting its nationals.
The military challenge can arise first of all for the defender party. As stated above, the conducting of NEOs is impossible without a temporary peace between the parties. The peace that lasts for several hours or even a day depending on the number of evacuees can be used by a defending party, which conducts the defensive military operation by regrouping or resupplying the combatants in an urban area with different means of warfare, which could not be possible in other circumstances. While the third country is conducting NEO, the attacking party can see an advantage too, by doing exactly the as above, which can ultimately result in a renewal of hostilities based on breaking the peace terms. There is a risk of perfidy by both sides as well.
On the other hand, for an attacking party especially if it has a significant advantage over the defenders, a temporary ceasefire, for the above-stated and other reasons, can cause a significant change in the methods of warfare, which can result in excessive losses in manpower and military equipment and can lead to overall failure of the offensive operation. Hence, the attacking party may be the most reluctant to agree on conducting NEOs in the urban area unless it foresees an inevitable victory such as it happened during the urban/siege combats of Mariupol in 2022.
The main military challenge for a third party who conducts the NEO could be a need for a separate safe zone near an urban area free of landmines where the third country nationals will move. Moreover, there is a need for providing detailed information to military commanders about where the properly identifiable vehicles or aircraft, will move, since the risk factors depend on the good faith of the military commanders too, that can “mistakenly” target the aiding force. Additionally, if the local civilians try to join the NEO there is a high possibility to encounter tragic events which occurred in Kabul in 2021 or in Saigon decades ago.
Conclusion
The conduct of NEOs by the third states is not regulated by the IHL, rather, it relies entirely on the consent of belligerent parties and can be initiated during the temporary peace. The absence of obligatory rules under IHL for the evacuation of third-country nationals from urban areas or the provision of safe passages to civilians leaves such operations significantly endangered. Consequently, the Geneva Conventions' unclear protection for third-country nationals renders them exceptionally vulnerable during urban warfare.
[1] Supra note 5, Art. 15
[2] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
[3] Ibid., art. 57.
[4] Supra note 5, Art. 49.
[5] Ibid., Art. 17.
[6] Durhin, Nathalie. "Protecting civilians in urban areas: A military perspective on the application of international humanitarian law." International Review of the Red Cross 98, no. 901 (2016): 177-199.
[7] Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 1949, art. 4.
[8] Ibid.
[9] Chairman of the Joint Chiefs of Staff. “Joint Tactics, Techniques, and Procedures for Noncombatant Evacuation Operations” Joint Pub 3-07.5, (1997): vii.
[10] Zedalis, Rex J. "Protection of nationals abroad: is consent the basis of legal obligation." Tex. Int'l LJ 25 (1990): p. 221.
[11] Thomson, Andrew WR. "Doctrine of the protection of nationals abroad: rise of the non-combatant evacuation operation." Wash. U. Global Stud. L. Rev. 11 (2012): p.639.
[12] Ministry of Defence, “Joint Doctrine Publication 3-51 (3rd Edition) Non-combatant Evacuation Operations.” (2021): 3.
Nikoloz Mosidze, Law Bachelor from Free University of Tbilisi. National IHL competition winner and second in IHL essay contest organized by ICRC and Ministry of Justice in Georgia. Legal Researcher for Ukraine Programme at 'Platform for Peace and Humanity,' focusing on armed conflict analysis. Published essay on urban warfare's impact in a renowned international law blog, cited by ICRC experts in International Review of Red Cross.